A merger or acquisition in the works means not only needing to determine whether any acquired foreign nationals (including key employees) will be able to transfer seamlessly into the new entity, but also what to do about compliance with the Form I-9 Employment Eligibility Verification. Please read our full story here.
Significant Retrogression Because of Continuing High Demand for Visas, State Department Announces
The Department of State (DOS) has announced a significant retrogression from the July 2019 Visa Bulletin to the August 2019 Visa Bulletin of at least 3 years in many of the employment-based categories.
- EB-1 retrogresses by almost 2 years for most countries to July 1, 2016, except India, which stays at January 1, 2015;
- EB-2 retrogresses by almost 2 years from being current to January 1, 2017, for all other countries, while China and India advanced a bit to January 1, 2017, and May 2, 2009 respectively; and
- EB-3 retrogresses by almost 3 years from being current to July 1, 2016, for all other countries, while India retrogressed by more than 3 years to January 1, 2006, and China advanced by 6 months to July 1, 2016.
Individuals with pending adjustment of status applications can expect to continue in the process. Interviews will be scheduled, but cases will not be finally adjudicated until the priority dates become current again.
Charles Oppenheim, Chief of Visa Control and Reporting Division for the Department of State, generally predicted these retrogressions due to continuing increased demand. The hope is that the dates will return to the July 2019 level when the new fiscal year begins in October 2019.
Each month, to make its determinations for the Visa Bulletin, USCIS and DOS compare the number of visas available for the remainder of the fiscal year (ending September 30) with:
- Documentarily qualified visa applicants reported by DOS;
- Pending adjustment of status application reported by USCIS; and
- Historical drop off rate (for example, denials, withdrawals, and abandonments).
DOS also publishes a “Date for Filing Applications” chart each month. The dates on these charts are more beneficial, but are used only if DOS and USCIS predict that the annual allocation of visas will not be used by the end of the fiscal year. DOS announces each month (about a week after the Visa Bulletin is published) whether the Date for Filing chart can be used. Although the Date for Filing charts have been used occasionally in the past, given the current circumstances, they likely will not be used before the end of this fiscal year.
If you have questions about how this retrogression affects green card strategies, please reach out to your Jackson Lewis attorney.
Challenge to DHS Authority to Issue STEM OPT Extension Rule May Proceed, Court Rules
The plaintiffs may continue their challenge to the DHS’ authority to establish both STEM Optional Practical Training (OPT) and standard post-completion OPT, the District Court in Washington Alliance of Technology Workers v. DHS held on July 1, 2019.
The Washington Alliance of Technology Workers (WashTech) has been fighting for practical training for students on various grounds for a decade. At first, the challenge came down to a procedural issue over the fact that STEM OPT had been enacted without “proper” notice and comment. The government conducted a notice and comment period and then reissued the rule, making that case moot. In 2016, the case was refiled. By 2018, the case was in U.S. Court of Appeals for the District of Columbia Circuit. The Circuit Court remanded the case.
In the latest iteration of the case, the judge, over the objection of WashTech and the government, also allowed several groups to intervene, including the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council. These are groups that support OPT and STEM OPT and believe that they “cannot count on DHS to defend a regulatory program that plans to reconsider.”
The WashTech plaintiffs argue that DHS went beyond the legislative mandate when it extended student status and created training programs — thereby harming U.S. workers. The Trump Administration has hinted repeatedly that it is interested in reforming these training programs. That has not yet come to pass. Instead, the Administration is simply making it more difficult for students to remain in the United States by instituting new requirements for off-site training programs, making it more likely that foreign students will fall out of status and become subject to bars to admission to the United States.
Perhaps the U.S. Supreme Court’s Kisor decision will affect how this case (and others) is ultimately adjudicated. Kisor directed that the courts may no longer give so much deference to agencies.
We will continue to follow this litigation and any regulatory or legislative actions that may affect OPT or STEM OPT. If you have any questions about options for student employees, please reach out to your Jackson Lewis attorney.
House Passes Bill to Eliminate Green Card Backlogs, Competing Bill in Senate Introduced
The House of Representatives has taken a step in the direction of eliminating green card backlogs by passing the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) introduced by Representatives Zoe Lofgren (D-CA) and Ken Buck. (R-CO). The support was bi-partisan and passed in a 365 to 65 vote. The bill would:
- Increase per country quotas from 7% to 15% in the family-based categories;
- Establish a “first-come first-served” employment-based visa system (including EB-5 investor visas) by eliminating the “per country” caps;
- Establish a three-year transition period during which 10-15% of the visas would be set aside for countries other than India or China; and
- Ensure that immigrants who have approved employment-based immigration visa petitions at the time of enactment do not lose their places “in line.”
Representative Lofgren estimates that it would take a decade for the per country lines to equalize. The expectation is that if there is no increase in the number of visas available the wait time will even out to roughly seven years for everyone. Others have suggested that eliminating the quotas will only incentivize more immigration from India and China and thus eliminate any benefit.
Senators Mike Lee (R-UT) and Kamala Harris (D-CA) introduced a companion bill in the Senate (S. 386) back in February. That bill which also has bi-partisan support was referred to committee on July 9, 2019.
Senator Rand Paul, who opposed the “Fairness” Act, introduced the BELIEVE Act (Backlog Elimination, Legal Immigration and Employment Visa Enhancement Act) (S. 2091) on July 11, 2019. That bill, like the House bill, would establish a “first-come-first-served” employment-based visa system but would also:
- Quadruple the number of employment-based visas by doubling the number available annually and then exempting dependents from the “count”;
- Grant green cards to children of temporary workers who would normally “age-out” as long as they have graduated from a U.S. university and have been in the U.S. for at least ten years;
- Issue employment authorization to spouses and children of temporary workers in E, H and L status;
- Provide employment and travel authorization to those waiting in line for employment-based green cards as a safeguard; and (importantly for nurses and physical therapists)
- Exempt all shortage occupations from green card limits.
Any equalization will eliminate long lines for some employers and industries while adding wait times for others. Proponents of the new bills believe that the equalization would create economic benefits by, among other things, making the United States more competitive with other countries like Canada that have been able to take advantage of prospective immigrants’ frustrations with the long delays in the U.S. immigrant visa process.
Jackson Lewis will continue to follow these legislative developments and provide updates as they become available.
Blocked from Adding Citizenship Question to Census, Administration Moves to Gather Data
President Donald Trump announced that the Administration will not be proceeding with any further census litigation. The 2020 Decennial Census, which is already being printed, will be sent out without a citizenship question. Nevertheless, President Trump does want to obtain statistics on the number of residents in the country who are and are not U.S. citizens. By means of an executive order, he is eliminating “obstacles to data sharing” and asking all government agencies to immediately hand over any and all relevant statistics and numbers to the Commerce Department. The President said that the Commerce Department will use this data, including data from the Social Security Administration and the Department of Homeland Security, to come up with an even more accurate count of citizens, non-citizens, and undocumented individuals than the citizenship question on the census would have yielded. The President indicated that this count will affect an “array of policy decisions” possibly including apportionment.
In his statement, the President made his view clear that people should be proud and glad to declare that they are U.S. citizens. Indeed, USCIS statistics indicate that naturalization applications skyrocketed just prior to the 2016 election – more green card holders want to become U.S. citizens. There are approximately 740,000 pending naturalization applications. In the New York area alone the backlog is anywhere from 12 months to 24 months. Additional evidence of delays is seen in the number of lawsuits that are being filed in federal district courts due to these unreasonable delays. These lawsuits are at a 10-year high.
In what appear to be further attempts to restrict the processes for obtaining U.S. citizenship, the Administration has suggested that birthright citizenship could be limited, created a task force to “denaturalize” U.S. citizens who may have lied (intentionally or non-intentionally) on the citizenship applications, opposed creating a path to citizenship for DACA and TPS recipients, and been denying passports to individuals by questioning the validity of their birth certificates.
We will continue to follow how the new Commerce Department figures will account for all of the non-citizens who since 2015 have been trying become U.S. citizens and have been blocked by new USCIS policies that have created widespread delays.
What Supreme Court on Deference to Agency Interpretations May Mean
Courts’ deference to agency interpretations of their own statutes and regulations has been a mainstay of administrative law. The Chevron Doctrine has since 1984 provided that courts should put a “thumb-on-the-scales in favor of the government’s view of the meaning of [a] statute . . .” as long as the interpretation is reasonable. A similar stance toward agencies’ interpretation of their own regulations dates back to 1945 and is now known as Auer Deference. These doctrines also have a long history of being criticized as violating the separation of powers because they give the agencies much discretion and tend to whittle down legislative and judicial functions.
With Kisor v. Wilkie, No. 18-15, 2019 U.S. LEXIS 4397 (June 26, 2019), the U.S. Supreme Court has dealt a blow to Auer Deference, significantly limiting its scope. In its main opinion, authored by Justice Elena Kagan, the Court made it much more difficult for a court to defer to an agency’s interpretation of its regulations. No longer can a court easily find that the regulation in question is not ambiguous and defer to the agency’s interpretation. Now, courts must go through an exhaustive three-step process to determine whether a regulation is ambiguous enough to be deemed “genuinely ambiguous.”
Although the deference doctrine was not eliminated or overruled, the Kisor Doctrine could be helpful to litigants challenging agency interpretations of immigration regulations. Over the past couple of years, DHS and USCIS have issued new policies, based upon their current interpretation of regulations, that many have found troublesome, especially when it comes to the H-1B visa. Examples that have contributed to a 60-percent RFE rate include:
- The interpretation of a “bona fide employer-employee” relationship;
- The definition of an “employer”; and
- The definition of a “specialty occupation.”
Of course, the Kisor Doctrine could lead to elimination of programs such as OPT and STEM OPT that also come from agency interpretations of their regulations and have been challenged by opponents.
Justices Gorsuch and Kavanaugh have long been proponents of eliminating Chevron Deference. They wrote concurrences in Kisor indicating that they would have wanted to see Auer Deference completely overturned. Justice Roberts noted in a separate concurrence that the distance between the majority and minority view is “not as great as would initially appear.”
We will have to wait and see whether Kisor tips the balance in litigations challenging some recent actions of the immigration agencies. Kisor may be a first stab at restoring more of a balance among the three branches of government, but, because the agencies often rely on statutory interpretation, we may have to wait for a case that challenges Chevron Deference directly to come to the Supreme Court.
Update: DACA Litigation
DACA (Deferred Action for Childhood Arrivals) recipients have been in limbo and at the center of various political debates ever since President Donald Trump attempted to end the program in 2017. Put in place by the Obama Administration in 2012, DACA protects from deportation individuals who were brought to the United States by their parents as undocumented children. Individuals who have received DACA protection are granted work authorization, but currently have no pathway to lawful permanent residence in the United States. The 800,000 DACA recipients are known as “Dreamers,” and are generally considered to be model residents of the United States.
Litigation was initiated in various federal courts in 2017 as soon as the Trump Administration announced the program termination. Injunctions were issued preventing the Administration from terminating the program and DHS was ordered to continue to renew DACA registrations and employment authorization documents for individuals who were already DACA beneficiaries. The Administration has filed appeals and tried to convince the Supreme Court to review the case in an expedited manner. The Supreme Court twice declined to do so but has now decided to review the DACA issue during its next October term. A decision is anticipated sometime in 2020.
The Supreme Court has consolidated two other cases with DHS v. Regents of the University of California: Trump v. NAACP and McAleenan v. Batalla Vidal. The Court will decide whether 1) the decision to wind down the program is reviewable and, if so 2) whether the decision was lawful. One DACA case in Texas found that DACA was likely not legal because its enactment went beyond executive authority. However, in that case, the judge decided not to enter the fray and did not issue any injunction. Now it will be up to the Supreme Court to decide which of the federal courts is “right,” and the Texas case might forecast how a now more conservative Supreme Court could rule.
In the meantime, the pressure will be on Congress to take legislative action to protect the Dreamers before the Supreme Court issues a decision, and as the election season heats up. If Congress acts on time, the Supreme Court consideration of whether the decision to end the program was lawful would be moot. There have been various attempts at legislation that would grant permanent residence and a path the citizenship for the Dreamers. As recently as June 5, 2019 the House passed such a bill (the Dream and Promise Act), but it is unlikely to be taken up by the Senate in its current form.
Current DACA beneficiaries should continue to renew their statuses as soon as possible. Jackson Lewis attorneys are available to assist if you have questions about options for DACA beneficiaries.
Supreme Court Blocks Citizenship Question in the Census – For Now
The Commerce Department cannot include a citizenship question in the census – at least for now – according to the Supreme Court. In Department of Commerce et al. v. New York et al., the Court, in a 5-4 decision written by Chief Justice Roberts, said the question could not be in the census because the “sole reason” Commerce Secretary Wilbur Ross gave for his decision to include it – enforcement of the Voting Rights Act – seemed contrived. Justice Roberts wrote: “[a]ltogether, the evidence tells a story that does not match the explanation the secretary gave for his decision.” The Commerce Department will have to provide further information for the District Court to review before a final decision is made.
The Supreme Court’s decision was complex and layered, with justices agreeing or disagreeing with different parts of the opinion, but ultimately the case turned on Ross’ explanation. The Court held there was no violation of the Enumeration Clause of the U.S. Constitution and there was no violation of the Census Act. But the Court held that the Commerce Department’s decision was reviewable under the Administrative Procedures Act (APA) and that for there to be meaningful review the agency must “disclose the basis” of its decision. This could include assessing the mental processes of the decision-makers.
The Court allowed that decision-makers can act on preferences they may hold but the “genuine” reasons (not pretexts) must be presented so they can be “scrutinized by the courts and the interested public.”
Rather than seeking to appeal the case to the Second Circuit, the Commerce Department had asked the Supreme Court for a direct review because the Census Bureau needed to make its June 30th “go to print” deadline. If that deadline holds, the Bureau will not be able to include the citizenship question in the 2020 Census – even if the agency ultimately prevails. President Donald Trump tweeted his disapproval of the decision from Japan and is asking whether the census can be delayed until there is a “final and decisive decision . . .”
Federal district courts in New York, California and Maryland all held that the addition of the citizenship question violated the APA among other laws. Litigation is continuing and new evidence has come into play. The Maryland district court will consider whether documents from a now-deceased Republican operative prove that the Commerce Department planned to add the citizenship question because doing so would lead to an undercount that would advantage Republicans.
Federal Judge Orders Administration to Provide More Specifics on Travel Ban Waivers
In Mosleh et al. v. Pompeo et al. in the U.S. District Court for the Eastern District of California, Chief Judge Lawrence J. O’Neill ordered the Administration to show that delays in granting travel ban waivers to Yemeni relatives of U.S. citizens are “reasonable.” He opined that the government’s description of the process was “inadequate” and that without more specific information he will have to make a decision on the families’ request for injunctive relief based upon the inferences he draws from the lack of evidence.
The suit was filed by a group of U.S. citizens complaining that there have been “unreasonable administrative delays” in adjudicating their Yemeni relatives’ waiver applications. Yemen is one of the seven countries still subject to President Donald Trump’s controversial travel ban that became effective when the Supreme Court upheld it in 2018. There are exceptions to the ban for dual nationals and green card holders but otherwise affected visa applicants from Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen must show that they are eligible for a waiver. Such eligibility depends upon a showing of undue hardship or a national interest and proof that the individual does not pose a threat to national security.
In his dissent from the Supreme Court’s opinion upholding the Administration’s third iteration of the travel ban, Justice Stephen Breyer questioned whether an appropriate waiver process was in place. His conclusion was the case for the travel ban would be weakened if one were not. He wrote: “[d]enying visas to Muslim who meet the proclamation’s own security terms would support the view that the government excludes them for reasons based upon their religion.”
Critics have stated the standards for obtaining a waiver are nebulous and that the process is too protracted. While the ban itself provides quite a number of specific examples of when a waiver might be appropriate, including the applicant’s previous admission for work, study or other long-term activity, or the applicant’s wish to reside with a close family member, very few waivers have been granted. From December 2017 until October 2018, 38,000 visa applications were filed by individuals subject to the ban. The National Foundation for American Policy has analyzed Department of State data from 2016 (pre-travel ban) and 2018 (post-travel ban). The analysis shows an average 84% decline in immigrant visas issued to individuals from travel ban countries and an average 78% decline in nonimmigrant (temporary) visas. Yemen had the largest decline in immigrant visas at 91%.
Some of the stories of individuals who are waiting for determinations are disheartening. Many of the cases involve young children separated from their parents who are stranded abroad or American citizens separated from their spouses. But businesses are also suffering. Companies depending upon key employees coming to the United States also have been stymied. Immigration lawyers attest to the fact that waivers are very difficult to come by. Indeed, in general, waivers are not issued.
Jackson Lewis will continue to monitor updates on the Travel Ban and developments on the waiver process.
Brazil Lifts Visa Requirement for U.S. Citizens
In a move that likely will give a boost to the Brazilian tourism industry, the Brazilian government has announced that U.S. citizens can now visit Brazil without a visa. Citizens of Australia, Canada, and Japan also have received this cost-saving and time-saving benefit.
This move was first discussed in March by Brazilian President Jair Bolsonaro just prior to a trip to White House. Since then, Brazil has witnessed a 30-percent uptick in individuals searching online for flights to the country. Although Brazil will be losing income from visa fees, it expects the loss will be more than made up by the increase in visitors.
Eligible visitors will be able to stay in Brazil for an initial 90-day period, with the possibility of extending stay for an additional 90 days in a one-year period.
In exchange, although Brazilians still need a visa when coming to the U.S., President Donald Trump said that steps would be taken to add Brazil to the Department of Homeland Security’s Trusted Traveler Global Entry Program. Administered by Customs and Border Protection, Global Entry “allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States.” Visitors, upon entry, stop at a kiosk, have their fingerprints scanned and fill out a customs declaration form. A receipt is issued that instructs the traveler to go to baggage claim and the airport exit. Nationals from Argentina, India, Colombia, the UK, Germany, Panama, Singapore, South Korea, Switzerland, Taiwan, and Mexico are currently eligible for the Global Entry Program.
The U.S. Travel Association supports Brazil’s inclusion in the Global Entry Program. Since 2017, close to 2 million Brazilians have traveled to the U.S. annually, spending more than $7 billion. It is expected that making it easier and more welcoming for Brazilians will only lead to increases in these figures.
