Latest ICE Aggressive Enforcement Targets Northern Ohio Meat Processing Plants

On June 19, 2018, unannounced ICE raids resulted in the arrest of more than 140 workers at four meat processing plants in Ohio. ICE calls this its largest workplace raid in recent history.

According to Fresh Mark, it is a member of ICE’s voluntary IMAGE (ICE Mutual Agreement between Government and Employers) Program. Fresh Mark reportedly has been under investigation for a year.

The number of arrests made at the Fresh Mark locations tops the number made across the country at 7-Eleven locations in January 2018, the 97 arrests made in April 2018 at another meatpacking plant in Tennessee, and the 114 arrests made in early June at a flower and garden center, also in Ohio.

Search warrants for documents were executed at two of the Fresh Mark locations. Most of those arrested were sent to processing facilities to begin removal proceedings for entering the country illegally and for using fake identity documents.

According to the company, it was one of the first companies in Ohio to become a member of ICE’s voluntary IMAGE Program. As a member of the program, employers agree to:

  • Complete the IMAGE Self-Assessment Questionnaire/Application
  • Enroll in E-Verify within 60 days
  • Establish a written hiring and employment eligibility policy, including an annual internal I-9 audit
  • Submit to a Form I-9 inspection
  • Review and sign the official IMAGE partnership agreement with ICE

For IMAGE members, ICE and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, and use of the E-Verify employment eligibility verification program. Membership does not protect against enforcement actions.

Fresh Mark supplies bacon, ham, and hot dogs to businesses and sports complexes in Ohio. Their Sugardale Hot Dog gained fame at “Sugardale Dollar Dog” days at the Cleveland Indians baseball team’s Progressive Field.

 

 

Texas Anzalduas Port of Entry May Test Face Recognition Technology

Starting in August, the U.S. Customs and Border Protection (CBP) reportedly will begin a pilot program at the Anzalduas port of entry in Texas using face recognition technology to capture facial images of occupants in moving vehicles as they travel to and from Mexico. Facial recognition technology is already being tested at a number of international airports, including Washington Dulles, New York J.F.K., Miami, and Los Angeles.

CBP has been working to develop more technically advanced, efficient strategies for recording information on individuals entering and exiting the U.S. since 2012.

After 9-11, Congress passed legislation to use biometric technology to screen non-U.S. citizens entering and exiting the country. Entry programs, particularly at airports, posed little difficulty as all entering passengers are funneled through CBP. Exit programs were much more difficult, because individuals depart airports from multiple gates – providing no central location for collecting biometrics and any proposed system would have caused immense delays in airport processes.

By 2015, CBP’s Field Operations, in conjunction with the DHS Science and Technology Directorate, had tested facial recognition software and, in 2016, conducted a pilot program at the Atlanta airport. With a small camera, CBP photographed every passenger, not just non-U.S. citizens, during the plane boarding process. Those photos were then matched in real time against a gallery of photos collected for each individual at the time of check-in.

By 2017, some airlines in partnership with CBP were working toward boarding passengers with just facial recognition technology – without boarding passes. In the future, CBP hopes to be using biometric technology nationwide.

Privacy groups and two U.S. Senators have questions about the legality of these biometrics programs. Because those being screened and photographed include U.S. citizens, Senators Edward Markey (D-Mass.) and Mike Lee (R- Utah), in a letter to DHS Secretary Kirstjen Nielsen, noted various objections. They pointed out that Congress never authorized the use of biometric screening for any purpose on U.S. citizens, that the DHS had no authority to collect and store (even for just 14 days) the data of U.S. citizens, and that there was a four-percent error rate (meaning, one in 25 individuals might be misidentified). Studies, they noted, indicated that error rates varied depending upon gender and race. Although the letter was delivered in December 2017 and questioned the way biometrics were being captured at U.S. international airports, the same objections undoubtedly would apply to the pilot program at the Mexican border.

Jackson Lewis will continue to monitor and provide updates on this and other legal developments.

Labor Department To Demand More Information in H-1B Labor Condition Application

The U.S. Department of Labor (DOL) has released proposed changes to ETA Form-9035, Labor Condition Application for Nonimmigrant Workers (LCA), that would require more details about the end-user clients and potential worksites specific to the placement of H-1B workers.

Current practice requires employers to list the addresses for all intended worksites. The proposed change would require U.S. employers to provide the legal business name of the end-user client at whose worksite the H-1B intends to work. This new requirement directly targets U.S. employers who place foreign national workers at third-party worksites. The proposal further increases employers’ reporting requirements by asking for identification of not only known worksites but those at which there is a “reasonable expectation” of placement.

As part of the explanation for this change, DOL stated, “[E]mployers must identify those worksites at which the employer knows or reasonably expects to place H-1B workers based on existing contracts, business plans, or its own expertise.” DOL asserts that these changes are being “made to improve transparency about the number of H-1B workers being sent to worksites . . . and the entities with which the workers will be placed.”

The LCA would allow additional pages for up to 10 worksites. DOL estimates the time needed to complete the LCA will increase more than threefold, given that considerable additional employment (and estimated employment) information would be required.

This is not the first change to the H-1B program this year. U.S. Citizenship and Immigration Services (USCIS) had updated its policies to make it more difficult to place foreign students at third-party worksites during their STEM Option Practical Training (OPT). Further, in April, USCIS issued a policy memorandum requiring employers to provide detailed itineraries for the entire duration of H-1B petitions involving off-site employment.

The proposed regulation creates additional burdens for U.S. employers that hire and place foreign workers with H-1B visas at third-party worksites. There are also a number of concerns regarding the proposed rule’s language. For example, DOL uses the term “secondary employer” to describe the end-user clients. This could imply the existence of an employer-employee relationship, which may or may not exist.

If you have questions about the proposed rule, please reach out to your Jackson Lewis attorney.

Administration Considering New Rule on Lawfully Present Immigrants Who Use Public Benefits?

The Trump Administration reportedly is considering a new rule that would make it easier for the government to deny visas to individuals on “public charge” grounds. This has drawn the criticism of many New York legislators.

The Administration may have been contemplating the move for a while. In January 2017, when the first travel ban was implemented, the Administration reportedly had been working on a draft executive order meant to fulfill some of President Donald Trump’s campaign promises based on the assumption that “households headed by aliens (legal and illegal) are much more likely than households headed by native-born citizens to use federal means-tested public benefits.” That executive order was never signed and never formally released.

More than 70 New York State legislators, headed by Assemblyman Andrew D. Hevesi, sent a letter to Trump on June 8, 2018, opposing the proposed rule because they would “fundamentally and negatively alter who we are as a nation, directly threaten the health and well-being of millions of New Yorkers, and impose a significant economic burden on [New York].”

Under current regulations, the government may deny individuals seeking visas or permanent resident status if they likely will become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” That cash assistance includes Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and state or local cash assistance programs known as “general assistance.” However, according to the USCIS Fact Sheet, simple receipt of those benefits does not necessarily lead to a public charge determination. “Each determination is made on a case-by-case basis in the context of the totality of the circumstances.” USCIS would not consider many government programs, including Medicaid, Children’s Health Insurance Program (CHIP), housing benefits, and unemployment compensation, among many others, in making public charge determinations.

Reportedly, under the proposed changes, programs not previously considered in making a public charge determination will be considered, including:

  • Certain health care subsidies
  • Some educational benefits, including Head Start
  • Affordable Care Act subsidies
  • Food Stamps, now known as Supplemental Nutrition Assistance Program (SNAP)
  • Women, Infants and Children assistance (WIC)
  • CHIP
  • Certain housing benefits
  • Transit vouchers

The New York legislators noted that immigrants, including those with U.S. citizen children, might stop enrolling in healthcare programs to preserve their ability to obtain immigration benefits. “It is not difficult to imagine the dire outcome for New York of hundreds of thousands of children disenrolling from health insurance benefits,” they observed.

The proposal has not yet been approved by Secretary of Homeland Security, Kirstjen Nielsen. The New York legislators have urged the Administration “to reject outright this ill-advised change in policy and recognize that this nation is not strong in spite of immigration; it is strong because of immigration.” States with large immigrant populations (such as New York and California) would be particularly affected by any change.

A Migration Policy Institute study found that almost half of noncitizens legally in the U.S. could be affected by the proposed rule – only three percent are affected by the current rule. Moreover, studies have shown that native-born Americans use public benefits at roughly the same rate as the foreign-born population.

Jackson Lewis will provide updates if a formal proposal is announced.

Fair Employment Housing Commissions Publishes New National Origin Discrimination Regulations; Limits “English-Only” Rules and Expands Protections for Immigration Status

If you haven’t visited our California Workplace Law Blog, please see this recent post which touches on limitations on practices for verifying employment eligibility, as well as related protections for workers.  It is co-authored by one of our immigration attorneys, Brian Schield.

State Department to Release New Visa Restrictions on Students from China

New restrictions on visas for citizens of China are expected as soon as June 11, 2018, according to the Associated Press. These restrictions, the report states, would target students in high-tech fields such as robotics and aviation.

The changes would be part of the Trump Administration’s national security strategy to protect American’s intellectual property and prevent espionage. Reports of such changes have been in the air for several months. As early as December 2017, the Administration released the “National Security Strategy of the United States of America.” This report stated:

“The United States will review visa procedures to reduce economic theft by non-traditional intelligence collectors. We will consider restrictions on foreign STEM students from designated countries to ensure that intellectual property is not transferred to our competitors, while acknowledging the importance of recruiting the most advanced technical workforce to the United States.”

In line with these general principles, Chinese students in priority fields now may be limited to one-year visas and other Chinese citizens may require special clearances from various government agencies if they work for businesses that are on the Commerce Department’s “higher scrutiny” list.

The United States already restricts access to certain technologies through security clearances and export controls. For instance, individuals from “suspect” countries who work on technologies with potential military and security applications (“dual use technologies”) may have to be under the umbrella of an export license. Export licenses are governed by a complex body of regulations from the Commerce and State Departments and employer certifications regarding export licenses appear on certain immigration forms, including H and L visa petitions. The Administration may be considering broadening these regulations as they relate to China. In the meantime, visa applicants who work with dual use technologies are already subject to additional scrutiny, screenings, and delays through special administrative processing procedures known as Security Advisory Opinions (SAOs).

Universities are particularly concerned about how new restrictions may affect and, in some cases, even cripple collaborative projects that benefit from international cooperation with Chinese researchers. They also are concerned about how restrictions will affect their ability to attract promising Chinese students, particularly graduate students. While the United States has been a magnet for researchers and students, especially in technical fields, other options and other countries such as Canada appear poised to take advantage of any new restrictions.

Jackson Lewis will provide updates on the new restrictions as they become available.

Program for Foreign Entrepreneurs to End

On May 29, 2018, DHS published a proposed rule to remove the International Entrepreneur Parole Program (IER). This was hardly unexpected.

Since January 25, 2017, when President Donald Trump issued the Border Security and Immigration Enforcement Improvements executive order, it has been clear that the Administration would seek to eliminate the IER as being an inappropriate use of DHS parole authority. In July 2017, DHS attempted to delay the effective date of the rule until March 14, 2018, while it developed its proposal to eliminate the rule. On December 1, 2017, the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke ruled that DHS would have to continue to accept IER applications. To date, DHS has received 13 applications and none of the applicants have been granted parole.

DHS has justified the removal of the IER on several grounds:

  • Parole authority is not appropriate for implementing a complicated program for entrepreneurs and business start-ups that would be best implemented by Congress;
  • Entrepreneurs should use existing legislative vehicles such as the E-2, E-5, or National Interest Waiver programs to the extent possible; and
  • DHS should not use its limited resources to implement a policy does not support Trump’s chief objective of protecting U.S. workers.

Despite the fact that no IER applications have been approved, DHS has proposed various options for the termination of the program. Its preferred option is to simply end parole on the effective date of the final rule. There are also proposed provisions for those who have pending applications. These individuals may withdraw their applications and have their fees returned or leave their applications in place and argue that they are entitled to discretionary parole even without the IER.

Elimination of the IER was set out in the DHS’ Spring 2018 Regulatory Agenda, which also included:

  • Establishing electronic registration for the Cap H-1B program;
  • Changing the focus of the H-1B program to the “best and brightest” and protecting the interests of U.S. workers;
  • Eliminating H-4 EADs;
  • Updating the USCIS fee schedule;
  • Modernizing the EB-5 Immigrant Investor Program;
  • Reforming Practical Training programs for students; and
  • Mandating more electronic filings.

Eliminating H-4 EADs is next up. That proposed new rule is expected in June 2018, followed by the Cap H-1B electronic registration rule in July 2018.

Please contact a Jackson Lewis attorney if you have any questions about this and other developments.

 

Insights: How to Prepare for Rescission of H-4 Employment Program

The U.S. Court of Appeals for the D.C. Circuit, at the government’s request, has been holding a case on the viability of H-4 EADs in abeyance for about six months. The government said it planned to make significant revisions to its proposal to eliminate H-4 EADs. In its Spring 2018 Regulatory Agenda, DHS announced the expected date of publication for its proposal to rescind the ability of certain H-4 spouses to obtain EADs is June 2018 – less than one month away.

The government’s proposal for winding down the H-4 EAD program is expected to address the following questions:

  • Will those with H-4 EADs be allowed to continue to renew their work authorization or not?
  • Will initial applications and applications for renewal for H-4 EADs be accepted until a date certain?
  • Will there simply be a date when all H-4 EADs will no longer be valid?

There are approximately 100,000 spouses of H-1B workers employed on H-4 EADs. These spouses, mostly women, are often highly skilled workers who simply are unable to obtain one of the limited number of H-1B visas available annually. They are also entrepreneurs building businesses and creating jobs in the United States. Taking away their ability to work will affect not only their families’ finances, but also U.S. companies’ ability to compete for the “best and the brightest” internationally.

Given the uncertainty, eligible applicants should apply for and, if possible, renew H-4 EADs expeditiously.

Moreover, individuals with H-4 EADs should be exploring possible alternatives.

If the H-4 EAD holder has a sponsor company, consider the following:

  • Is an O Visa for individuals of extraordinary ability a possibility?
  • Is the individual from one of the countries with treaty-based work authorization similar to H-1Bs such as Canada, Mexico, Singapore, Chile, and Australia?
  • Is the individual employed by or could be employed by a college or university or other affiliated institution that is not subject to the H-1B cap or even employed concurrently by an exempt organization?
  • Could the individual be employed in L status by the parent, subsidiary, or affiliate of a company that he or she worked for within three years of coming to the U.S.?

If the H-4 EAD holder does not have a sponsor company, consider the following:

  • Could the individual apply for a self-sponsored Green Card such as an EB-1A (for individuals of extraordinary ability) or an EB-2 National Interest Waiver (for individuals with advanced degrees or exceptional ability working in a field that serves the national interest of the U.S.)?
  • Could the individual return to school in a program that would provide work authorization in the form of CPT or later OPT?
  • Could the individual apply for a Green Card under the EB-5 Immigrant Investor Program?

Determining whether it is feasible for an individual to obtain any one of the above statuses requires a fact-based legal assessment. If you wish to discuss options and possibilities, please reach out to your Jackson Lewis attorney. We will monitor and provide updates regarding the new rule.

TN Visa Program Subject to Higher Scrutiny, Possible Limits

It has been reported that the Trump administration is working toward limiting the number of TN visas. Based on the precepts of the Buy American, Hire American executive order, U.S. Trade Representative Robert Lighthizer has made reducing the TN program part of the renegotiation of NAFTA. The Administration reportedly wants to limit the number of professions eligible for the TN classification and possibly cap the number of visa renewals available. On the other hand, Canada and Mexico, whose citizens are eligible for TN visa status if they qualify under the NAFTA professions list, would like to expand the number of eligible professions to bring it more in line with current technology demands.

In 2016, Congress passed legislation that bars an administration from changing visa numbers during trade negotiations. It may be possible to avoid that bar, however, by simply modifying the operable treaty, rather than negotiating a new treaty. Of course, any new version of NAFTA would have to be ratified by Congress. There are those in Congress in favor of a reduction in NAFTA visas. Senator Charles Grassley (R-IA), in an October 2017 letter to Lighthizer , wrote “[t]his uncapped and under-recognized pool of high skill employees exacerbates the risk to American workers already present in certain industries that rely too heavily on foreign workers. It also constrains the U. S. Government’s total discretion over our immigration laws. . .” Although statistics regarding the number of Canadians in the U.S. in TN status are not readily available, Grassley believes that the overall number of TN visa status holders in the U.S. is approaching 100,000. Differing from Grassley’s view, legislators such as Representative Zoe Lofgren (D-CA), who represents Silicon Valley, emphasize the need for the “best and brightest,” and do not want to reduce the number of visas available.

Speaker Paul Ryan hoped to ratify a revised NAFTA during this legislative session but because negotiations are still in progress, it will likely have to wait until next year.

Even without treaty changes, we have already seen that TN applications are more highly scrutinized. Certain categories, such as economists, are subject to new guidelines, individuals’ credentials are being questioned, and even individuals who already hold approved TN visas and TN classification may be denied renewals.

Given the current uncertainty, employers may want to consider whether there are any alternative visa options for employees currently in TN status. If you have any questions about possible options, please reach out to your Jackson Lewis attorney. We will continue to follow the NAFTA negotiations and provide updates as they become available.

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