Second Federal Court Injunction Issued to Keep DACA in Place, Fate Remains Uncertain

Following January’s ruling by Judge William Alsup in San Francisco, a second federal court has issued a nationwide injunction ordering the government to keep DACA in place.  Judge Nicolas G. Garaufis of the US District Court in Brooklyn, New York ruled that the rescission of DACA was “arbitrary and capricious” and that the equities and reliance interests favored an injunction.

In the meantime, Congress has not been able to make any progress on DACA or any other immigration reforms. The Senate’s planned debate ended this week with at least four plans being rejected including the bi-partisan bill introduced by Senators John McCain (R-Ariz.) and Christopher Coons (D-Del.) that essentially traded relief for the “Dreamers” for border security funding and the plan sponsored by Senator Chuck Grassley (R-Iowa) and other Republicans that followed President Donald Trump’s “four pillar” approach.

Although Congress has been operating as if President Trump’s March 5th deadline for providing relief to the “Dreamers” is operative, the federal court orders would appear to have  alleviated some of that pressure.  Although the actual deadline is unknown, individuals who are already beneficiaries of DACA will be able to continue to apply for renewals at least until either of the federal cases reaches its conclusion.  Even though the Trump Administration plans to vehemently defend the DACA rescission and hopes to expedite the litigation process, and, as of this writing, the Supreme Court reportedly is having a “closed-door” meeting regarding whether to expedite review of Judge Alsup’s decision, it may be months before either of these cases comes to a conclusion.

We will continue to follow DACA developments and provide updates as events warrant.

USCIS Memorandum on Qualifying ‘Economist’ under NAFTA TN Classification Raises Questions

NAFTA’s TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. One TN-qualifying profession is that of an “economist,” which requires a baccalaureate or licenciatura degree. NAFTA does not provide a specific description of what an economist does, what professions would be considered economists, or the functions of an economist to qualify.

This failure has resulted in inconsistent adjudications, RFEs issued by USCIS even for extensions of TN status, and individuals questioned at the border.

To address these inconsistencies, USCIS issued a policy memorandum explaining that TN economists “must engage in activities consistent with the profession of economist.” USCIS noted that, based on the Standard Occupational Classification System (“SOC”) from the Bureau of Labor Statistics (“BLS”), economists are individuals primarily in market research analyst, marketing specialist, and financial analyst positions that did not qualify as “economists” under NAFTA.

USCIS identifies two broad focus areas of economists: (1) microeconomics (the analysis of “the behavior of individuals and firms with the aim of understanding the relationships between supply and demand”) and (2) macroeconomics (the analysis of “aggregated indicators to determine how different sectors of the economy relate to each other”). USCIS stated that some financial analysts might be recognized as “economists” if they are primarily performing economist duties specializing in microeconomic and macroeconomic analysis. These include:

  • Applying economic analysis to fields such as labor, international trade, development, econometrics, education, health, and industrial organization, among others;
  • Conducting research, preparing reports, or formulating plans to address economic problems related to production and distributions of goods and services or monetary and fiscal policy; and/or
  • Collecting and processing economic and statistical data using sampling techniques and econometric methods.

Financial analysts who “primarily conduct quantitative analyses of information affecting investment programs of public or private institutions” would not qualify, according to the USCIS memorandum.

Moreover, USCIS in the issuance of RFEs has been relying on the BLS Occupational Outlook Handbook (“OOH”) to question the qualifications of some applicants who do not have advanced degrees. The OOH states, “Most economists need a master’s degree or Ph.D. However, some entry-level jobs – primarily in government – are available for workers with a bachelor’s degree.” This is contrary to NAFTA Appendix 1603.D.1. of Annex 1603, which states that an “economist” must have a baccalaureate or a licenciatura degree.

Accordingly, it could be argued that the USCIS memorandum’s “new” definitions and eligibility requirements are not consistent with the NAFTA Treaty. However, the USCIS memorandum will be applied by USCIS and CBP officers.

Employers with individuals traveling in TN status whose positions could be considered to be in marketing or financial analysis categories must be careful of the travel risks. Whether other visa options that would be more viable in this new environment also should be explored. Jackson Lewis attorneys are available to assist you in assessing the risks and options.

Surge of ICE Raids Expected in California Following State Adoption of Immigration Laws

California seems to be at odds with the Trump Administration over many subjects, including the legalization of marijuana, the expansion of off-shore drilling, the elimination of state and local tax deductions, and immigration.

The most recent clash over immigration began with the passage in October of “The California Values Act” (CVA) (SB54) and the Immigrant Worker Protection Act (IWPA) (AB450). California essentially became a “sanctuary” state. It also began placing affirmative obligations on employers to provide employees with notification regarding possible inspection or enforcement actions. Acting ICE Director, Thomas Homan, threatened California with targeted ICE raids.

Now that the CVA and IWPA are in effect, Homan told Fox News, “California better hold on tight. . . . They are about to see a lot more special agents, a lot more deportation officers.”

Given the planned uptick in inspections, California employers (both public and private) should be aware of the warrant and subpoena requirements of the IWPA, as well as the notice requirements in the California Labor Code, Section 90.2.

As far as notice is concerned, employers must:

  • Provide employees and their authorized representatives with a public notice, including a copy of the Notice of Inspection of I-9 Employment Eligibility Verification Forms itself, within 72 hours of receiving notice of an upcoming federal inspection. The California Department of Labor has developed a template for this Notice to Employees that can be found at: http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf
  • Upon reasonable request, provide an “affected employee” with a copy of the Notice of Inspection.
  • Provide each “affected employee” and their authorized representatives within 72 hours of receipt:
    • A copy of the written immigration agency notice that provides the results of the inspection and written notice of the obligations of the employer and the affected employee arising from the results of the inspection;
    • The notice should be delivered by hand at the workplace, if possible, and if not possible, by mail and email, if the employee’s email is known, and to the employee’s authorized representative. The notice must contain:
      • Description of all deficiencies related to that employee;
      • Time period for correcting any potential deficiencies;
      • Time and date of any meeting with the employer to correct any identified deficiencies; and
      • Notice that the employee has the right to representation during any scheduled meeting with the employer.

According to Labor Code Section 90.2, an “affected employee” is one identified by the immigration agency inspection results to be an employee who may lack work authorization, or an employee whose work authorization documents have been identified to have deficiencies.

Failure to provide these notices subjects employers to a civil penalty of $2,000 to $5,000 for the first violation and $5,000 to $10,000 for each subsequent violation.

For more information regarding all of the requirements under the IWPA, please contact your Jackson Lewis attorney.

Streamlined, Bipartisan Immigration Bill Offered to Resolve DACA Dilemma

With the February 8th deadline for debate on DACA imminent and the March 5th DACA termination deadline approaching, legislators have been introducing bills to resolve the long-standing “Dreamer” issue.

Senators John McCain (R-Ariz.) and Christopher Coons (D-Del.) have introduced a simplified measure combining DACA and border security. It would grant permanent legal status to more than 1.8 million “Dreamers.” It also would enhance security on the U.S. southern border initially through the use of drones and other technology. Under the bill, DHS must prepare a proposal regarding border security strategy within a year of passage. The bill does not provide immediate funding for a border wall. It is a companion bill to the bi-partisan Uniting and Securing America Act of 2017 (USA Act of 2017), introduced in the House by Representatives Will Hurd (R-Tex.) and Pete Aguilar (D-Cal.). That bill has 54 co-sponsors – 27 Democrats and 27 Republicans.

In an interview, Senator Coons stated he expect some border funding would have to be added. He also explained that he would continue to work with the “Common Sense Coalition” headed by Senators Susan Collins (R-Me.) and Joseph Manchin (D-W. Va.) to find a compromise on a path forward.

Earlier bipartisan legislation introduced by Senators Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.) took a similar tack. Reportedly, President Donald Trump initially supported that bill, before ultimately rejecting it. Regarding Coons-McCain, President Trump has already tweeted the following:

Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time . . . March 5th is rapidly approaching and the Dems seem not to care about DACA. Make a deal!

The Administration continues to focus on its “four pillars” framework: border security (including a $25-billion trust fund for a wall), a 10- to 12-year path to citizenship for 1.8 million “Dreamers,” an end to “chain migration,” and an end to the diversity visa lottery. The McCain-Coons bill streamlines the issues and addresses only a pathway for Dreamers and enhanced border security.

In the meantime, DACA beneficiaries may continue to apply for renewal, while they await further court rulings. A case of particular interest is whether the Supreme Court will grant certiorari to review the legality of President Trump’s rescission of the DACA program.

‘I-Squared’ Bill Would Change H-1B and Other Immigration Programs

While the Administration and Congress work to reconcile the needs of DACA recipients with concerns over border security and illegal immigration, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) have introduced a bill to reform immigration programs for high-skilled workers. If the bill passes, it would go a long way to maintaining U.S. competitiveness in the global economy.

President Donald Trump has long talked about taking a merit-based approach to immigration, and, according to Senator Hatch, the Immigration Innovation Act of 2018 (“I-Squared”) is just that. Hatch said, “As I’ve long said, high-skilled immigration is merit-based immigration, and we need a high-skilled immigration system that works. [I-Squared] will help ensure that our companies have access to the world’s best and brightest . . . .”

Unlike the RAISE Act, sponsored by Senators Tom Cotton (R-AR) and David Perdue (R-GA) and supported by Trump, I-Squared would not cut legal immigration over a 10-year period. Instead, it proposes an increase in programs for high-skilled foreign workers while still protecting U.S. workers.

Some key provisions of I-Squared regarding H-1B visas include:

  • Increasing the annual allocation of H-1B visas to a maximum of 195,000, based upon demand;
  • Adding an unlimited number of exemptions for those with U.S. master’s degrees if the employer has or will sponsor the employee for a green card;
  • Providing work authorization for H-4 dependents where the H-1B spouse has a pending or approved Labor Certification or I-140 and require H-4 employers to certify they will pay the spouse the greater of the actual wage or the prevailing wage;
  • Prioritizing adjudication of cap-subject H-1Bs based upon a degree hierarchy;
  • Streamlining the H-1B process for employers who file multiple nonimmigrant or immigrant petitions;
  • Prohibiting the displacement of U.S. workers with H-1B workers;
  • Restricting exemptions for H-1B dependent employers, including many outsourcers;
  • Raising prevailing wages; and
  • Raising ACWIA fees, based upon employer size and the number of H-1Bs available each year, to promote American ingenuity by using the new funds to increase STEM education funding.

I-Squared also proposes changes in green card programs. Key provisions would:

  • Eliminate per country numerical limitations on immigrant visas and recapture unused visas from FY 1992 through FY 2013 to cut the backlogs;
  • Increase portability;
  • Add 35,000 employment-based conditional immigrant visas; and
  • Create dual intent for students to make it easier to apply for green cards from student status.

I-Squared is supported by the high-tech sector, the Society for Human Resource Management, and the U.S. Chamber of Commerce. The U.S. Chamber of Commerce said it is “thankful to Senators Hatch and Flake for introducing the Immigration Innovation Act of 2018. The bill would vastly improve high-skilled immigration to the U.S. by establishing market-based H-1B quotas and instituting various reforms to our employment-based immigrant visa system that would make our nation’s immigration system more merit-based.”

Versions of I-Squared were introduced by Hatch in previous sessions of Congress. Hatch hopes that this time, the bill might be included in the immigration discussions underway regarding DACA.

Trump Administration Releases Framework for Immigration Deal

The Trump Administration has released a new framework containing components of proposed immigration reform.

Not surprisingly, border security is at the top of the list and includes the following components:

  • New $25 billion trust fund for the (southern) border wall system
  • Funds for hiring more enforcement personnel
  • Immigration court reforms
  • Ending the “catch-and-release” policy and establishing an emphasis on the prompt removal of illegal border crossers
  • Ensuring the removal of criminal aliens, gang members, violent offenders and aggravated felons
  • Expedited removal for visa overstays

Legalization for DACA recipients and other DACA-eligible illegal immigrants is next:

  • Increase in the number of eligible individuals to 1.8 million (from 800,000)
  • Provision of a 10-12 year path to citizenship

Ending so-called “Chain Migration”:

  • Limit family sponsorship to spouses and minor children for U.S. citizens and Legal Permanent Resident sponsors
  • Exclude parents and other non-nuclear family members from sponsorship

Ending the Diversity Visa Lottery:

  • Reallocate the 50,000 diversity lottery visas to the family-based and employment-based backlogs. As of November 1, 2017, there were approximately 4 million applicants waiting for green cards, 112,000 are employment-based applicants.

This framework increases the number of “DACA-like” recipients but is otherwise similar to the principles that the Administration offered in October 2017 in exchange for DACA relief. The new proposal, however, does not include all of the earlier proposals such as requiring the use of E-Verify and eliminating federal aid to sanctuary cities.

It is reported that the Administration believes this framework could reach 60 votes in the Senate although its fate in the House is likely more uncertain. Due to the Administration’s DACA rescission in September 2017, Congress has only until March 2018 to find a solution for the future of the “Dreamers.”  More details about the framework are expected from the Administration soon.

USCIS Issues Guidance on DACA Program While Supreme Court Looks at Legality of Program Rescission

Post-shutdown, while Congress debates immigration and the future of the “Dreamers,” the litigation over the legality of President Donald Trump’s rescission of DACA is speeding up. The U.S. Supreme Court accepted the request for an expedited review of the Administration’s petition for certiorari and has set February 2, 2018, as the date when briefs must be submitted.

In September 2017, just after the rescission was announced, close to 20 states and the District of Columbia filed lawsuits challenging the rescission.  In January, a federal judge in San Francisco, William Alsup, issued a nationwide injunction, ruling that DACA must remain in place while litigation over the legality of the President’s decision to wind down the program is pending. This opened a window for DACA beneficiaries whose applications for renewal had been barred by the rescission.

In light of the court order, USCIS issued the following guidance on January 13, 2018:

  • Individuals who were previously granted deferred action under DACA may apply for renewal.
  • Individuals whose DACA expired on or after September 5, 2016, may apply for renewal.
  • Individuals whose DACA expired before September 5, 2016, or whose DACA was previously terminated cannot submit renewal applications, but may submit initial DACA request applications.
  • USCIS will not accept applications from people who have never been granted DACA protection in the past.
  • USCIS will not accept or approve applications for Advance Parole from DACA beneficiaries (and those who currently have Advance Parole may not want to risk international travel at this time).

Congressional leadership has set a February 8, 2018, deadline for coming up with a possible solution for DACA.

Due to the current uncertainty, DACA beneficiaries should consider taking advantage of what might be a brief “window of opportunity” and file for renewals or initial applications where possible. If no permanent solution for DACA is found, only a minority of DACA beneficiaries likely will have other options for remaining in the U.S. and retaining work authorization. There may be family or employment-based avenues to permanent residence, but what options might be available is a complex and fact-specific determination.

Employers who wish to discuss options or the best way to reach to DACA employees without risking accusations of national original discrimination should contact their Jackson Lewis attorney.

Government Shutdown Is Over, For Now

Congress reached agreement and voted to end the government shutdown at least until February 8, 2018.

In case another impasse occurs, this is how a federal government shutdown would affect immigration.

Department of Labor (DOL)
The Office of Foreign Labor Certification (OFLC) will stop processing all applications, and its personnel will not be available to respond to inquiries by email or other means. OFLC’s web-based systems, iCERT and PERM, will be inaccessible, and Board of Alien Labor Certification Appeals (BALCA) dockets will be on hold.

Therefore, if a new Labor Condition Application (LCA) is submitted for an H-1B employee and it has not been certified by the time of a shutdown, it will be not be certified until the government shutdown is over. LCAs that have not been submitted, cannot be submitted until the government shutdown is over. For any PERM green card case that is in preparation, prevailing wage requests (Form ETA-9141) and PERM applications (Form ETA-9089) will not be able to be filed until the government shutdown is over. Cases that have been submitted to the DOL and have not yet been adjudicated at the time of a shutdown will be delayed.

Department of State (DOS)
DOS will continue all scheduled passport and visa services in the United States and overseas as the situation permits.

United States Citizenship and Immigration Services (USCIS)

As a fee-funded agency, USCIS will continue its operations, with the exception of the following programs that may still need specific reauthorizations by Congress: EB-5 Regional Center Program; E-Verify; Conrad 30 J-1 doctors; and Non-minister religious workers.

Immigration and Customs Enforcement (ICE)
ICE enforcement and removal operations will continue, with primary focus on the detained docket.

Please reach out to your Jackson Lewis attorney with any questions regarding the above.

 

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