DHS Issues Re-registration Information for Salvadorans in Temporary Protected Status

Following the official Federal Register notice of the termination and re-registration period for Haitian TPS beneficiaries, DHS also has published the notice of termination and re-registration period for El Salvadoran TPS beneficiaries.

Haitian TPS beneficiaries will terminate on July 22, 2019. The 60-day re-registration period will run from January 18, 2018, to March 19, 2018.  El Salvadoran TPS beneficiaries will terminate on September 9, 2019. The 60-day re-registration period will run from January 18, 2018, to March 19, 2018. EADs also should be renewed at this time. In recognition of processing issues, currently valid Haitian TPS EADs will be extended automatically until July 21, 2018.  Valid El Salvadoran TPS EADs with an expiration date of March 9, 2018, will be extended automatically until September 5, 2018.

Approximately 200,000 Salvadorans and 60,000 Haitians are affected by these termination orders. Full instructions on how to re-register are available in the Federal Register notices. If you have any questions regarding the application process and post-termination options, please reach out to your Jackson Lewis attorney.

Haitian Temporary Protected Status Re-registration To Begin

The long-awaited announcement of the 60-day re-registration period for Haitian TPS beneficiaries is about to be published in the Federal Register on January 18, 2018. The re-registration period will begin immediately upon publication.

The Acting Secretary of DHS announced on November 11, 2017, that TPS for Haitians, previously set to expire on January 22, 2018, would be extended then terminated on July 22, 2019.

Current beneficiaries can re-register and apply for new EADs. According to the expected Federal Register notice, individuals with EADs valid through January 22, 2018, will receive an automatic EAD extension, valid until July 21, 2018, regardless of whether they apply for new EADs. In order to extend work authorization beyond July 21, 2018, until July 22, 2019, however, those beneficiaries must re-register and apply for a new EAD.

Individuals who timely filed re-registration and EAD applications during the last Haitian re-registration period and have not yet received approvals need not reapply at this time. Their applications will simply be processed under the new guidance.

The Form I-821 re-registration application does not require a fee, other than the biometric fee. EADs have the usual fee requirements. Fee waivers may be available.

The full text of the unofficial announcement, including information on reverification for I-9 purposes, can be found at https://www.federalregister.gov/documents/2018/01/18/2018-00886/temporary-protected-status-terminations-haiti.

ICE Announces Enforcement Priorities, Raids Nearly 100 7-Eleven Stores

On January 10, 2018 ICE issued a press release setting forth its three-pronged approach to worksite enforcement compliance: “compliance, through I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability.”

On 6:00 a.m. that same day, immigration agents raided 98 7-Eleven stores across 17 states. They served audit notices, interviewed employees and managers and arrested 21 workers.  Characterized as a “show of force” to highlight the Trump administration’s zero tolerance policy with regard to undocumented individuals, this operation is the largest to date under the current administration.  ICE noted that this raid was a follow-up on their 2013 investigation of 7-Eleven franchises.  In that investigation, there were arrests of nine franchise owners and managers as well as criminal fines for more than $2.6 million for wire fraud and concealing and harboring undocumented individuals.

Inspection notices were served at 7-Eleven franchises in California, Colorado, Delaware, Florida, Illinois, Indiana, Maryland, Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Texas, Washington and Washington, D.C. Sixteen of the franchises were in the New York City area.  The franchisees have three days to comply with audit requests and supply information regarding the immigration status of their employees.

Thomas Homan, Acting Director of ICE, noting that undocumented workers are a “pull factor” for illegal immigration, stated that “[t]oday’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

Texas-based 7-Eleven, Inc. noted that the stores are owned as franchises by independent business owners who are solely responsible for verifying employment authorization and that “it has terminated the franchise agreements of franchisees convicted of violating these laws.”

ICE published news accounts of the 7-Eleven raids on its Twitter account to further emphasize its stringent enforcement priorities with regard to employers and undocumented workers themselves. If you have questions about how to prepare in the face of increased targeted enforcement, please contact your Jackson Lewis attorney.

Time to Prepare for the 2018 H-1B Lottery

For immigration attorneys and employers of foreign nationals alike, the frenzy of the spring H-1B Cap season is right around the corner. Now is the time to start preparations for the April filing deadline.

Each year, 85,000 new H-1B work visas become available for high-skilled workers seeking employment in an “H-1B specialty occupation.” Many more H-1B applications are filed than there are slots available, and an H-1B “lottery” is triggered. While filings dropped slightly last year, the lottery is expected to be triggered again this year. But there might be other differences. The Administration has been floating the idea of changes to the lottery, including possible pre-registration to focus on the “best and the brightest.”

To ensure your chance to sponsor an employee for an H-1B work visa, follow this checklist:

  1. Identify current or prospective employees who may require sponsorship: This may include a recent graduate working for your company in F-1 status, a foreign national working for a subsidiary abroad, or individuals in other visa statuses (e.g., H-4, TN, L-1, L-2, E-3, and TPS). Review Form I-9s to identify essential employees with expiring work authorization who may require H-1B visa sponsorship.
  2. Confirm job details for the prospective H-1B employee: Especially in light of last year’s uptick in Requests for Evidence, in order to initiate the H-1B process, immigration counsel should review (among other things) the job duties, salary, and all worksite locations for the employee. Without this initial information, it is impossible to determine if the position will qualify for the H-1B visa, or if there may be wage issues or other problems with the visa sponsorship. Job descriptions must be sufficiently detailed with percentages assigned to the job duties. Level 1 wages may be subjected to heightened scrutiny.
  3. Contact immigration counsel: As soon as you determined you wish to sponsor an employee for an H-1B Cap visa, let your attorney know. In addition to confirming eligibility, immigration counsel can advise on other immigration strategies, especially if your application is not selected in the H-1B lottery. Engaging counsel early on is also necessary to ensure the H-1B Cap application can be completed and filed before the April deadline.
  4. Stay in contact with immigration counsel throughout the entire process should you have any questions: Events may occur after the application is filed that may require the employer’s assistance. This may include providing additional documents/information pertaining to the application in response to a government request for additional evidence, as well as helping to ensure an employee maintains immigration status while the H-1B application is pending. This could include reminding the employee not to travel internationally while the application is pending, as well as reminding an F-1 employee to file for an OPT STEM extension, if eligible (even if the H-1B Cap application was selected for processing). The employee’s Form I-9 also may need to be updated to indicate continued work authorization under the “Cap-Gap” regulations while the application is pending.

Starting early and working with an experienced immigration counsel can help to alleviate some of the stresses of the process H-1B Cap process and give your application the best chance at success. Following our tips will put you on the right track to avoid common H-1B pitfalls.

If you have any questions about H-1B visas or any other immigration matter, please reach out to your Jackson Lewis attorney. We will be monitoring any changes and are prepared to advise you on those developments.

Government Not Ending H-1B Extensions, USCIS Says

Reports about the possible elimination of AC-21 extensions (for H-1B workers awaiting green cards) are now being denied by the government. The USCIS is attempting to quell fears caused by rumors that the Administration would eliminate H extensions beyond the six-year limit for certain individuals unable to file the last step in permanent residency, adjustment of status, because of per-country limits.  The chief of media relations for the USCIS said that while the agency was considering regulatory and policy changes, “the USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States,” as long as their green card cases are pending. He noted, however, that even if the USCIS stopped granting the three-year extensions, most H-1B holders with pending green card cases would still be eligible for the one-year extensions under the current statute.

Elimination of these extensions was strongly opposed by many, including Representatives Kevin Yoder (R-KS) and Tulsi Gabbard (D-HI). In a letter to President Donald Trump, they argued the foreign nationals who would be affected “are working with the American immigration system, not against it.” The U.S. Chamber of Commerce opined that such a change would be a “tremendously bad policy” because it would “harm American business, our economy and the country.” And, advocacy groups for the especially vulnerable Indian tech industry mobilized lobbyists and others to argue against any such change.

Jackson Lewis will continue to follow these and other developments regarding the H-1B program.

DACA Must Remain in Place Pending Litigation, Federal Judge Rules

While Congress continues to try to find an acceptable solution for “Dreamers,” a federal judge in San Francisco has ruled that DACA must remain in place while litigation over President Donald Trump’s decision to wind down the program is pending. Judge William Alsup issued a nationwide injunction directing the Trump Administration to re-start the program. This means that any DACA recipients who were unable to submit status renewal applications by last fall’s deadline should have that opportunity now.

The case, one of several similar suits currently pending, was brought by California Attorney General Xavier Becerra and joined by others, including universities and the Attorneys General for Maine, Maryland, and Minnesota.  Janet Napolitano, Secretary of Homeland Security when the Obama Administration instituted the DACA program and current President of University of California system, is one of the lead plaintiffs in the case. Becerra vowed to fight for the Dreamers “at every turn for their rights and opportunities so they may continue to contribute to America.” Judge Alsup’s nationwide injunction is at least an initial victory for DACA proponents.

The court found the plaintiffs would suffer irreparable harm if DACA is terminated in March 2018, before litigation over the rescission is resolved. On the merits, Judge Alsup doubted whether DACA was put in place illegally, because DHS has the authority to grant temporary protections from deportation. In support of his decision, Judge Alsup referenced some of Trump’s recent tweets. He stated that the program’s benefits were summed up by Trump’s tweet saying, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!”

Devin O’Malley, a Justice Department spokesman, said the Department “will continue to vigorously defend [President Trump’s rescission] . . . and looks forward to vindicating its position in further litigation.”

Judge Alsup’s order does not require the government to accept new DACA applications. The government could still prevent DACA recipients from returning to the United States after travel abroad.

If you have questions about how to renew DACA status during this window of opportunity, please contact your Jackson Lewis attorney.

 

Temporary Protected Status for Salvadorans in U.S. to End in 2019

Ending all speculation, the Secretary of Homeland Security has announced the end of temporary protected status (TPS) for approximately 200,000 Salvadorans who have been in the United States since 2001, following two earthquakes in El Salvador.

The termination will be delayed for 18 months, until September 9, 2019, to allow for “an orderly transition.” This follows the Department of Homeland Security (DHS) recent termination of TPS for Guinea, Haiti, Liberia, Nicaragua, Sierra Leone, and Sudan. In her announcement, DHS Secretary Kirstjen Nielsen said DHS conducted extensive research and outreach before coming to its decision. Among other things, the agency held community forums and met regularly with Salvadoran government officials as well as with the El Salvadorian Foreign Minister, the Ambassador to the U.S., and the President of El Salvador to determine whether the “original conditions” caused by the 2001 earthquakes still existed. They concluded that these conditions “no longer exist” and, therefore, Salvadorans in the U.S. are no longer eligible for TPS. The Secretary further noted that El Salvador is now capable of having its nationals return, as evidenced by the fact that, over the last two years, 39,000 individuals have been repatriated to El Salvador.

The 200,000 Salvadorans in TPS represent the largest group of nationals currently in the U.S. The actual number of affected persons is much larger, because the 200,000 figure does not include spouses and U.S.-citizen children. It also does not include companies that have employed these individuals who have been in the U.S. for close to 20 years. Figures indicate that the largest number of Salvadoran TPS holders live in Washington D.C., with smaller numbers living in Los Angeles, New York, and Houston. “Nearly one-third own their homes, according to a 2016 survey, and more than 60 percent have at least one child who is a U.S. citizen.”

Immigration advocates have noted that not only are these individuals fully assimilated into the U.S., but that it is not safe for anyone to return to El Salvador. The country suffers from a high rate of homicide and gang violence. They also argue the country cannot re-absorb such a large number of people. According to a Pew study, the government of El Salvador has asked that TPS be extended.

Salvadorans in TPS status will need to re-register for TPS in order to remain in the U.S. throughout the termination period. They cannot re-register until instructions are published in the Federal Register.

Haitians who learned in November 2017 that their TPS would be terminated are still awaiting instructions.

In the meantime, in certain circumstances there may be other immigration statuses available to some TPS holders. Should you have any questions about the termination of TPS status and the possible options, please reach out to your Jackson Lewis attorney.

U.S. Expected To Add Restrictions on Visas in New Year

Uncertainty regarding employment-related immigration regulations has not ebbed with the arrival of the New Year.

Employers may be losing employees to the possible elimination of H-4 EADs and STEM extensions. Major changes in the H-1B cap process, including pre-registration and new eligibility standards, also are said to be on the horizon. The Trump Administration reportedly wants to eliminate H-1B extensions for employees with pending Green Card cases.

This last possibility would be particularly troubling because long-term employees and their dependent family members might have to leave the United States and work elsewhere while they wait for their Green Cards – a process that can take years for many employees, including Indian nationals.

While such changes are expected or possible during 2018, businesses will find it difficult to plan for them.

For-profit employers are not the only ones affected by the expected changes. Non-profit universities in the U.S. are already feeling a financial pinch from the drop of foreign students. Foreign students contribute $39 billion in revenue to universities, and many schools, particularly in the Midwest, have come to rely on the growth of their foreign student population. At some state institutions, foreign students pay twice the tuition of in-state students. Schools have used that extra tuition money to expand programs and improve their bottom lines. Moody’s Investors Service has changed the credit outlook for higher education to “negative,” from “stable.” That may make it more difficult for some schools to borrow money for expansion.

U.S. institutions have been losing out to schools in other English-speaking countries, such as Canada and Australia. These countries have been trying to attract foreign students of the sort who, up to now, have been coming to the U.S. Recognizing the economic and other benefits of attracting and retaining highly educated workers, Canada has created a special path to citizenship and Australia has made its visa process easier.

Meanwhile, the U.S.’s travel bans and extreme vetting have made it more difficult and less appealing for foreign students to attend a school in the U.S. The possible cutback or elimination of OPT and STEM extensions also has reduced foreign student enrollment. The ability to participate in training after completing a degree in the U.S. has been a great draw, but those programs now may be on the chopping block.

Jackson Lewis attorneys will continue to follow these developments to help clients be ready to plan and adapt in this time of uncertainty.

 

New Secretary of DHS Announces New Country Requirements for Visa Waiver Program

Department of Homeland Security Secretary Kirstjen Nielsen has announced new security measures applicable to all countries in the Visa Waiver Program (VWP).

The VWP allows citizens or nationals of 38 participating countries to enter the U.S. for business visits or tourism for stays of up to 90 days without obtaining a visa stamp in their passports.  Travelers must have a valid ESTA (Electronic System for Travel Authorization) approval in advance of their travel and (as of April 1, 2016) must have an e-Passport with an embedded electronic chip.

In 2015, under the Terrorist Travel Prevention Act, certain travelers were no longer eligible to use the VWP (but they could apply for B visas):

  • Nationals of VWP countries who traveled to or had been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen after March 1, 2011; and
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Now, the Trump Administration has announced further security enhancements. According to Nielsen, the following security measures will apply to all VWP countries:

  • Full implementation of all existing information sharing arrangements to screen travelers against U.S. counterterrorism information databases;
  • VWP countries must be judged to have effective safeguards against insider threats in aviation ; and
  • VWP countries with a two percent or greater rate of business visitor or tourism overstays will have to initiate public information campaigns to reduce violations.

DHS is also asking Congress to:

  • Bolster reporting of foreign terrorist fighter information to organizations, such as INTERPOL and EUROPOL;
  • Enhance systems to collect and analyze data on passenger travel (Advance Passenger Information/Passenger Name Records); and
  • Finalize efforts to allow U.S. Federal Air Marshals to operate onboard U.S. air carriers on direct flights to the United States from abroad.

To date, four countries have been identified as overstay violators: Greece, Hungary, Poland, and San Marino, a separate republic in Central Italy.

It has been reported that, overall, approximately 1 percent of travelers to the U.S. overstay their visas. Although the percentage is small, the Administration worries that some overstays represent a national security risk. Nielsen also stated in her announcement that “[t]hese enhancements will strengthen the program, and they are part of our continued efforts to raise the baseline for homeland security across the board.”

To date, there is no information on how these new restrictions will be enforced, but Nielsen is authorized to remove countries from the VWP.

VWP travelers from the four identified countries who already have ESTA approvals should check the status of their countries’ participation prior to traveling.

Department of Homeland Security to Tighten H-1B and Other Regulations

The Trump Administration’s Unified Agenda of Federal Regulatory and Deregulatory Actions for the DHS contains close to 60 items.

Published in the spring and fall, the Unified Agenda gives information about regulations that are under development. The latest iteration represents President Donald Trump’s promise to amend and eliminate “regulations that are ineffective, duplicative, and obsolete” in order to “promote economic growth and innovation and protect individual liberty.”

Here are some changes employers can be expected in 2018.

Strengthening the H-1B Nonimmigrant Visa Classification Program:

  • Revise the definition of a “specialty occupation” to focus on the “the best and the brightest”
  • Redefine the employer-employee relationship “to better protect U.S. workers and wages”
  • Impact: This might mean a further crackdown on outsourcers and new definitions that could make it more difficult to obtain visas in certain occupational categories

Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to the Numerical Cap:

  • Streamline the H-1B Cap process by introducing an electronic registration process
  • May include a modified selection process to focus on the “best and brightest”
  • Impact: This might mean a more hierarchical approach to the selection process based upon degrees and wages

Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

  • Eliminate the H-4 EAD Rule
  • Notice of Proposed Rulemaking is expected in February 2018
  • Impact: This might mean a loss of employment authorization for approximately 100,000 spouses

Practical Training Reform

  • Improve protections for U.S. workers who may be negatively impacted by students employed in F and M status
  • Reduce fraud and abuse and increase oversight of schools and students involved in the program
  • Notice of Proposed Rulemaking is expected in October 2018
  • Impact: This might make is more difficult to hire and retain students and could result in the reduction in enrollment of foreign students at U.S. institutions

Jackson Lewis will continue to monitor the progress of these proposals.

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