Please see our firm publication on New York City’s enforcement guidance on discrimination based on national origin, immigrant status here.
U.S. District Court Judge George S. Daniels of the Southern District of New York enjoined the Trump Administration’s new Public Charge Rule scheduled to go into effect on October 15, 2019. The new Rule has been the subject of much controversy and would have made it more difficult for foreign nationals to obtain green cards or even secure or extend temporary non-immigrant visa status.
In State of New York et al. v. U.S. Department of Homeland Security, 1:19-cv-07777-GBD, the Judge Daniels held that:
- Plaintiffs, including the State of New York, the City of New York, the State of Connecticut, and the State of Vermont, satisfied all standing requirements;
- The new Rule violated the Administrative Procedure Act (APA) because it exceeded delegated authority under the Immigration and Nationality Act (INA) and was arbitrary and capricious; and
- The new Rule violated the Rehabilitation Act because it denies access to benefits to individuals with disabilities.
In a companion case, Make the Road New York et al. v. Ken Cuccinelli, 1:19-cv-07993-GBD, Judge Daniels also enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice.
It has been reported that the Department of State will proceed with its own version of the Public charge Rule scheduled to take effect October 15, 2019, meaning that Judge Daniels’ nationwide injunctions are limited to DHS’s new Rule.
Jackson Lewis will provide updates as they become available.
Although not legal on the federal level, the marijuana industry is a fast-growing economic sector in the U.S. Thirty-three states have legalized medical marijuana and 10 of those have legalized recreational use. Based on online job search websites, there are about 200,000 to 300,000 marijuana-related jobs available (many on the lower-paid agricultural-side). As the industry grows, the need for more high-skilled workers, such as chemists, is likely to grow. Canada legalized marijuana in 2018 and the first marijuana exchange-traded fund is already becoming profitable. A Wall Street analyst who has followed the industry since 2016 forecasts that the market in the U.S. could grow to $80 billion by 2030 if there is federal legalization. Without federal legalization, however, the profits and high-skilled foreign workers will go elsewhere.
Under U.S. immigration law, any foreign nationals, even green card holders, who participate in the marijuana industry, make investments, or use marijuana where it is legal (even for medicinal purposes) may be subject to harsh consequences — barred from returning to the U.S. or prevented from naturalizing (for at least five years).
There have been bills introduced in Congress that would help to alleviate the conflict between state and federal laws, including eliminating federal penalties for those complying with state marijuana laws and removing marijuana from the list of controlled substances. But to date none, other than the SAFE (Secure and Fair Enforcement) Banking Act, have had much traction. SAFE, a bill that would protect banks that work with the legal marijuana industry, passed in the House of Representatives but likely will not pass in the Senate. If passed, this bill would be a first step, but would do nothing to protect foreign entrepreneurs and workers involved in the legal marijuana industry.
Should Congress pass a bill removing marijuana from the “controlled substance” list, it would end the immigration problem (at least going forward). Immigration “penalties” that affect those involved with the legal marijuana industry come into play because marijuana is considered a “controlled substance” under federal law. The alternative would be to change federal immigration law regarding admissibility so that use of marijuana or participation in the legal marijuana industry would no longer be a bar to benefits. Some foreign nationals who have been denied benefits on these bases are appealing the decisions.
Non-U.S. citizens should be wary of participation in the marijuana industry. If you have questions about these issues, please reach out to a Jackson Lewis attorney. We will continue to follow this issue and provide updates as they become available.
A federal judge has sentenced Pradyumna Kumar Samal to more than seven years in prison, fined him $10,000, and ordered him to pay restitution for the taxes he stole. United States of America v. Samal, No. 2:18-cr-00214 (W.D. Wash. Sept. 20, 2019).
Samal, the ex-CEO of two IT staffing companies, was investigated for visa fraud by the Department of State and the Department of Homeland Security beginning in 2015. The evidence against his employment practices included emails, documents, and interviews with former and current employees and contractors. Samal fled the country during the investigation, and upon returning to the U.S. in 2018 he was arrested at an airport in Bellevue, Washington. Samal was charged with a multi-year visa-fraud that included a “bench-and-switch” scheme, exploitation of foreign national workers, and defrauding the U.S. government by submitting false and forged immigration application materials.
The fraud arose from petitions filed by Samal for close to 250 H-1B beneficiaries. The petitions stated that the foreign nationals would work at specific client sites and included forged documents from Samal’s clients (and some fictitious clients) supporting his assertions. The investigation showed that Samal was petitioning for employees he hoped to place with end clients, but he had no legitimate assignments for the beneficiaries when he filed the petitions. He was trying to eliminate “lag times” and gain a competitive advantage by having “H-1B beneficiaries” available for future assignments. Because he had no planned assignments for these foreign nationals, they often had to look for or wait for assignments after they arrived in the U.S. While they waited, Samal violated more immigration laws by not paying the foreign nationals – illegally “benching” them. Whether the foreign nationals eventually “found” work or not, they had to pay Samal a “partially-refundable ‘security deposit’ of as much as $5,000 for the visa filings” – yet another violation. Beyond the immigration violations, Samal also embezzled more than $1 million in withheld income that he never submitted to the government. Instead, he purchased luxury items and used the money for personal expenses.
Most IT consulting and staffing companies are engaged in legitimate immigration pursuits. For some time, USCIS has been focusing enforcement efforts on consulting companies that place their H-1B employees at client sites. This includes questioning whether computer programmers are performing in specialty occupations (and thus eligible for H-1B petitions) and demanding extensive documentation to prove that IT consultants are in bona fide employer-employee relationships with their H-1B petitioners.
Please contact a Jackson Lewis attorney with any questions about this case, the H-1B program, or USCIS.
Online FY 2021 Diversity Lottery registration began on Wednesday, October 2, 2019 at noon (EDT) and ends on Tuesday, November 5, 2019 at noon (EDT). This year, 55,000 Diversity Visas (DVs) will be available. The Diversity Lottery provides visas to people from countries with historically low rates of immigration to the U.S.
There is no cost to register but individuals may not submit more than one application. Doing so will lead to disqualification. Eligibility requirements are set out on the Diversity Lottery website.
This year, individuals from the following countries are not eligible because they do not have historically low rates of immigration to the U.S.:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Eligible individuals may apply at www.dvlottery.state.gov.
Continuing the Administration’s high scrutiny of businesses using foreign workers, including highly skilled visas, the Department of Homeland Security has announced that it will be conducting inspections of employers employing F-1 students using STEM Optional Practical Training to work. Under the STEM regulations, ICE has the discretion to conduct on-site inspections. Reportedly, it has started inspections.
The purpose of the inspections is to confirm that employers and student-employees are complying with all STEM OPT requirements and attestations in the Form I-983, Training Plan for STEM OPT Students.
The Form I-983 requirements are:
- The employer has sufficient resources and trained personnel to provide appropriate training to the student;
- The student will not replace full-time or part-time, temporary, or permanent U.S. workers;
- The student’s compensation and other working conditions are commensurate with those of similarly situated U.S. employees;
- The student will have the opportunity to attain training objectives;
- The employer plays an active role in ensuring the integrity of program;
- The student completes an annual self-evaluation that is reviewed and signed by the employer annually and submitted to the DSO; and
- The student and employer report any material changes, termination, change in employer, or employee’s non-compliance with the program (e., failure of the student to report for work for five consecutive days).
If violations are discovered, the consequences can be dire — a student can be found “out of status” and future adjudications could be negatively affected.
In addition, under the Administration’s focus on possible “fraud” at third-party worksites, ICE likely will focus on STEM OPT students who are training at their employer’s client sites. This is typically found in the IT sector.
To prepare, employers should consider:
- Training a first-responder and a back-up staff member to interact with the ICE inspector;
- Ensuring the relevant student-employees and managers are aware of everything in the Form I-983; and
- Maintaining a process for reviewing Forms I-983 to ensure compliance and appropriate updating.
According to the regulations, ICE will give the employer two days’ notice before the inspection (unless the inspection is based upon a complaint). That may not enough time to prepare if the student is at a client site.
If you have questions about these inspections, please reach out to a Jackson Lewis attorney. We are available to help you audit Form I-983 compliance and develop processes so that you are “prepared.”
The Fairness for High-Skilled Workers Act has passed the House of Representatives, and is pending before the Senate where it may pass by unanimous consent (i.e., with no actual vote or hearing).
On its face, the Fairness Act seems fair. By eliminating the 7% per country cap, Indian nationals and Chinese nationals who have been waiting and would continue to wait for years to capture green cards would be placed at the front of line. But this would be at the expense of workers from other countries who are also important to the United States.
About 25% of all STEM workers in the U.S., including those in the fields of healthcare, physical science, computer, and math, are foreign-born and that figure is on the rise. One quarter of all doctors in the U.S. are foreign-born — many from sub-Saharan Africa — and are particularly important in poor, rural areas of the country where physicians are scarce. One in five pharmacists and one in four dentists are foreign-born. Other types of healthcare workers come from Asia, Mexico, Central America, and the Caribbean and our need for these workers rises as baby boomers age.
If the Fairness Act were to pass, recruiting from countries other than India and China might become more difficult, and this talent may well turn elsewhere. New Zealand, Ireland, Australia and the UK are also dependent on foreign-trained doctors.
High-tech workers from India and China are also important to the U.S. and its economy; but our current immigration system is driving them out as well. This started in 2008, when it became difficult for high-tech companies to get the number of H-1B visas they needed. That frustration has grown with the increased scrutiny of H-1B petitions and the long green card waiting lines. Indian and Chinese talent is heading for other countries, and Canada is welcoming them and their companies with open arms. South Africa, Argentina, India, Chile, Japan, Hong Kong, South Korea, Israel, Australia, and Ireland also are popular competitors.
Quotas of one kind or another have been part of the U.S. immigration system since the early part of the 20th century. Literacy requirements limited immigration from some of the poorer countries of the world. Country-of-birth quotas benefited those from the UK, Ireland, and Germany at the expense even of those born in southern and eastern Europe. The 1965 Immigration and Nationality Act (the Hart-Celler Act), which is the basis of our current system, abolished national origin quotas (to eliminate discrimination) and focused on family reunification. The 7% annual ceiling on the number of immigrants from any one country was established. The ceiling was not meant to be quota, but rather a “barrier against monopolization.”
Senator Rand Paul, who opposes the Fairness Act, introduced the BELIEVE Act (Backlog Elimination, Legal Immigration and Employment Visa Enhancement Act) (S. 2091) on July 11, 2019. That bill would simply quadruple the number of employment-based visas by doubling the number available annually and exempting dependents from being counted toward the annual quota of visas. His bill also would exempt all shortage occupations from green card limits.
The Fairness Act may be just an interim solution. Rather than pitting family-based immigration against employment-based immigration and rather than pitting one country against another or one industry against another, perhaps it is time for legislation like the BELIEVE Act that would simply increase the number of green cards available to everybody.
The challenge over the rule providing work authorization for spouses of certain H-1B workers who are in the Green Card process finally will be heard before the U.S. Court of Appeals for the D.C. Circuit on September 27, 2019.
For nearly three years, since the Trump Administration made it clear that it planned to rescind the policy permitting issuance of H-4 Employment Authorization Documents (EADs), spouses of H-1B workers with H-4 EADs have been living with a “Sword of Damocles” over their heads – fearing their work authorization could be eliminated at any time. Some have put their lives “on hold” because of the economic uncertainty and others are finding it difficult to obtain job offers because companies are hesitant to invest in training people who might soon lose their work authorization.
In 2015, Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs, challenged the Obama Department of Homeland Security’s (DHS’s) authority to enact the H-4 EAD Rule. Eventually the case landed in the D.C. Circuit Court of Appeals. The Trump DHS has demonstrated reluctance to defend the rule because of its plan to rescind it – opting to regularly request “pauses” in the litigation. To date, DHS has requested more than six “pauses” in the litigation based on its assertions that a new rule rescinding H-4 EADs would soon be published and that publication would moot the lawsuit. However, on September 27, 2019, two and a half years after it was originally scheduled, oral argument in Save Jobs USA v. United States Department of Homeland Security will take place. The Court decided to move forward over the DHS’s objection.
In its most recently denied request for yet another pause, DHS stated the rule is still going through the regulatory process and the earliest planned date for publication in the Federal Register would be in Spring 2020 – although DHS noted that timeframe is “aspirational.” The rule is still being considered by the Office of Information and Regulatory Affairs (OIRA). The hold-up appears to be due to concerns about economic impact. Since February 2019, there have been eight meetings with interested parties who have been providing specific information and data about the potential impacts. Many believe the losses to the economy and losses to tax revenues would far outweigh any possible gain for U.S. workers.
To forestall the rescission (and end the uncertainty), in May 2019, Representatives Anna Eshoo (D-Calif.) and Zoe Lofgren (D-Calif.) reintroduced the H-4 Employment Protection Act to prohibit the Trump Administration from eliminating the rule. Eshoo and Lofgren said in a press release, “H-4 visa holders deserve a chance to contribute to their local economies and provide for their families. This is a matter of economic fairness and this legislation ensures it will continue.” The legislation has been referred to the House Subcommittee on Immigration and Citizenship.
For now, H-4 EAD holders can continue to renew their work authorizations. Jackson Lewis attorneys will continue to monitor developments and provide updates as they become available.
In August 2019, the Department of Homeland Security extended Temporary Protected Status (TPS) for Syrian beneficiaries until March 31, 2021. Now is the time for these beneficiaries to re-register and apply to extend their Employment Authorization Documents (EADs).
On September 23, 2019, Syrian re-registration instructions were published in the Federal Register. All applicants who wish to extend their status through March 31, 2021 must re-register and apply for renewal of EADs by November 22, 2019.
Recognizing that beneficiaries may not receive new EADs before their old ones expire, EADs will be automatically extended for Syrian nationals through March 28, 2020 as long as applicants have timely re-registered and applied for renewal. While TPS extension for Syrian nationals was not unexpected, the Trump Administration has recently sought to restrict or terminate TPS for citizens of other countries, which attempts are the subject of ongoing litigation, and it opted not to request TPS for Bahamian nationals in the Dorian aftermath.
If you have any questions about the application of these rules or how to complete Form I-9s for TPS beneficiaries, Jackson Lewis attorneys are available to assist you. To review employment authorization for all TPS beneficiaries, please click here to access our TPS tool.
Since 2017, USCIS under the Trump Administration has essentially directed its adjudicators to find ways to deny H-1B petitions. The most recent statistics on Requests for Evidence (RFEs) and denials certainly support this, but evidence has been made available for analysis.
Through a FOIA request, instructional documents for USCIS adjudicators issued after President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA) provide guidance on denying benefits to foreign nationals and the companies that want to hire them. BAHA has become the new “catch-all” for enacting immigration policies without legislative or public comment or support. This “non-transparent” process has been partially revealed.
Denials of H-1B petitions used to be rare occurrences. In 2015, the denial rate was 6% — now, it is 32%. RFEs were hardly an everyday occurrence – now, 60% of H-1B petitions receive RFEs. Two USCIS memos issued in 2017 and 2018 have boosted the RFE and denial rates and particularly affect computer programmers and IT professionals working at third-party locations.
In one released document, adjudicators are given close to 100 pages with step-by-step boilerplate for issuing RFEs — but the Administration’s discussion of the statutory support for these RFEs is redacted, perhaps because the new “rules” are not supported by the law. In another, USCIS makes clear that adjudicators should not defer to prior approvals and should remember the petitioners bear the burden of proof. The documents show that:
- Adjudicators are directed to particularly analyze whether Level I and Level II wages are appropriate and issue RFEs asking for further information to justify the wage level.
- USCIS instructs its adjudicators that even when a bachelor’s degree would appear to be the “normal” requirement for a position, if the Department of Labor’s Occupational Outlook Handbook (OOH) indicates that some individuals in the position might have only an Associate’s degree, the position may not be a specialty occupation. The petition should receive an RFE and the petitioner must supply more information to prove that a bachelor’s degree in a specific field is definitively required.
- Most important, this instruction about the OOH is meant to apply to all kinds of positions — not just those that are computer-related. This explains why so many RFEs are challenging whether a job is indeed a specialty occupation.
Not only are these new “rules” leading to denials and more work for petitioners, they are creating more work for the USCIS and adding to crisis-level processing delays. USCIS used to think of itself as a “service oriented” organization, but now its mission focuses on enforcement and security.
If you have questions about how to strategize to deal with the “new normal” at USCIS, Jackson Lewis attorneys are available to assist you.