New Secretary of DHS Confirmed: Kirstjen Nielsen

On December 5, 2017, Kirstjen Nielsen was confirmed as the new Secretary of Department of Homeland Security by the Senate on a bi-partisan 62-37 vote, with just 11 votes from the Senate minority for her confirmation. Nielsen is a close aide to John Kelly, White House Chief of Staff and former Secretary DHS.

Elaine Duke, who has served in an interim capacity for four months, has said that she will continue to work with Nielsen as her deputy.

As Secretary of DHS, Nielsen will be in charge of 240,000 employees in 22 sub-agencies with broad jurisdiction and a range of responsibilities, including immigration enforcement, border patrol, aviation security, disaster preparedness, domestic counter-terrorism, the Secret Service, and the Coast Guard. A lawyer and expert in cybersecurity, Nielsen is the first Secretary of DHS who has worked at the agency before. She was Kelly’s Chief of Staff. She also has experience working at the TSA and as an advisor for emergency preparedness and disaster relief during the Bush Administration.

 

Travel Ban 3.0 May Take Effect (For Now), U.S. Supreme Court Rules

The latest version of the Trump Administration’s travel ban may take effect pending decisions expected shortly from the Courts of Appeals for the Fourth and Ninth Circuits, the U.S. Supreme Court has ruled.

The third iteration of the travel ban (Travel Ban 3.0), implemented in late-September, restricts travel to the U.S. for individuals from Chad, Iran, Libya, Somalia, Syria, and Yemen.  Travel Ban 3.0 also limits travel for individuals from the non-majority Muslim countries of North Korea and Venezuela.

Travel Ban 3.0 was targeted to cover specific categories of visa travelers. Two federal court judges had issued injunctions limiting implementation of the revised travel ban. They indicated that individuals would still be eligible for visas if they had a “bona fide” relationship to someone in the United States, including grandparents, nieces, nephews, cousins, and brothers- and sisters-in-law, or to an entity in the United States, such as an employer or a university.

By a 7-2 decision, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting, a majority of the Supreme Court overruled the lower court injunctions, allowing the travel ban to be implemented in full. The Court noted that the Ninth Circuit and the Fourth Circuit courts are both hearing oral arguments on the substantive legality of the travel ban within a week, and the Court expects decisions will be issued “with appropriate dispatch.” A decision on the underlying merits is expected to be appealed to the Supreme Court, potentially to be decided this term.

Attorney General Jeff Sessions stated that the Court’s ruling allowing the President’s proclamation to go into effect was “a substantial victory for the safety and security of the American people.”

Omar Jadwat of the ACLU, which represents some of those challenging the ban, stated: “It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims. . . . We will be arguing Friday in the Fourth Circuit that the ban should ultimately be struck down.”

We will continue to follow developments and provide updates. Please contact Jackson Lewis with any questions.

International Entrepreneur Rule Survives, For Now

The Trump Administration rule delaying the International Entrepreneur Rule (IER) until March 14, 2018, had been implemented without following the necessary Administrative Procedures Act (APA) Notice and Comment Period regulations and was therefore illegal, a federal court has found.

The Administration has not yet commented on the court’s ruling, but likely will appeal the decision.

Beginning July 17, 2017, the Obama-era IER was to start allowing promising entrepreneurs to come or remain in the U.S. to expand the economy by growing their companies. To be eligible, applicants/entrepreneurs had to prove the potential of their start-ups based upon qualified investments and other compelling evidence. Upon proving significant potential, the applicant could be granted parole and work authorization for up to five years. The IER amended the regulations on discretionary parole by adding provisions that would allow the use of parole on a case-by-case basis for entrepreneurs who can “demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States.” The additional regulation was to be published at 8 CFR 212.19.

This merit-based approach to using the parole authority would seem to be aligned with President Donald Trump’s general desire for a merit-based approach to immigration. However, Trump is also focused on strict enforcement of the immigration laws and eliminating the expansion of discretionary benefits such as parole.  Just before the IER was to go into effect, the Administration introduced the Delay Rule. Not only did the Delay Rule delay the start date of the IER to March 14, 2018, but the Administration noted at the time that it was likely to rescind the IER altogether.

National Venture Capital Association, along with two foreign entrepreneurs, filed suit in the U.S. District Court in D.C. to force the implementation of the IER. “The controversy boil[ed] down to two competing rules,” District Judge James E. Boasberg observed. Because the Delay Rule had been implemented without following the necessary APA regulations, Judge Boasberg found it was illegal.

The Administration argued that the costs involved and the confusion that would be engendered by implementing a rule they planned to rescind constituted “good cause” for skipping the Notice and Comment period. But the court disagreed, particularly noting the government could not rely on its own delay of close to six months from January 20, 2017, until July 2017, to argue “good cause.”

The Administration’s next steps are unknown. It might not be difficult for the Department of Homeland Security to start the program.  Staff training would be required but an IER Form (Form I-941) has already been created although not implemented and changes have already been formulated although not implemented to Form I-9 and the Lists of Acceptable Documents to account for the IER.

Jackson Lewis will continue to provide updates.

Rules on the Chopping Block: H-4 EAD and International Entrepreneur

The Trump Administration appears to be in the process of eliminating two rules: the H-4 EAD Rule and International Entrepreneur Rule.

In line with President Donald Trump’s “Buy American, Hire American” Executive Order and his aim for a fully “merit-based” visa scheme, a draft regulation that would end the H-4 EAD program (enacted by the Obama Administration in 2015) reportedly is being circulated. The draft regulation would need to go through the Notice-and-Comment period to comply with the Administrative Procedures Act before being adopted, likely some time in 2018.

Under the H-4 EAD Rule, spouses of H-1B beneficiaries who are in the process of getting green cards can obtain work authorization while they wait. This rule is particularly popular among the Indian and Chinese immigrant communities because their waits for green cards can be years long. Beyond allowing H-1B beneficiaries to be two-income families, the ability for spouses to obtain work authorization has been seen by some as encouraging highly skilled workers to remain in the United States. Its elimination could have a major effect on the companies that employ the approximately 100,000 individuals who are in the United States working on H-4 EADs. At this time, there are no details about how the Administration would plan to scale back the program.

Meanwhile, the International Entrepreneur Rule (IER), another Obama Administration rule, was set to go into effect in July 2017. The IER allowed foreign entrepreneurs who met certain standards (and who did not qualify for conventional visas) to come to the United States in parole status to set up new companies. This was seen as a way to expand the economy and allow the United States to compete more effectively for start-ups in the global economy. The Trump Administration, however, questioned this use of the parole authority and delayed the IER’s implementation. In fact, the Administration indicated that it was considering rescinding the IER. It has now been reported that a notice to officially end the rule was sent to the Office of Management and Budget. This is the first step before publishing a draft regulation in the Federal Register for Notice and Comment.

We will continue to monitor these developments and provide updates.

 

Haitian TPS Program Will End in July 2019

Six months after then-Secretary of Homeland Security John Kelly announced the extension of Haitian Temporary Protected Status (TPS) for only six months (until January 2018, when he would reevaluate the determination), Acting Secretary of Homeland Security Elaine Duke announced her decision to terminate the designation with a delayed effective date of 18 months.  She said this would allow for an orderly transition before the designation terminates on July 22, 2019.

Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the period. Further details about this termination for TPS will appear in a Federal Register notice. Termination of TPS will affect not only some 50,000-60,000 Haitians who are in the U.S. on TPS, but also their families, including approximately 30,000 U.S.-citizen children born in the U.S. to Haitians in TPS status since 2010 (when TPS was conferred after the earthquake that killed thousands on the island).

A number of advocacy groups, members of Congress, and the U.S. Chamber of Commerce had been urging a further extension based on ongoing problems from the devastating 2010 earthquake and Haiti’s limited capacity to reabsorb these nationals and family members.  They also highlighted that termination will create labor dislocations in certain construction, food processing, hospitality, and healthcare industries that have relied on Haitian TPS workers since 2010. Florida and Texas may be particularly hard hit as they continue to recover from Hurricanes Harvey and Irma.

Please reach out to your Jackson Lewis attorney if you have questions and want to discuss possible post-termination options for employees.

House Bill to Add Obligations for Employers Dependent on H-1B Visas Moves Forward

A bi-partisan House panel has approved the “Protect and Grow American Jobs Act,” a bill that would change eligibility requirements for exemption from the standard Labor Condition Application (LCA) requirement for H-1B-dependent employers. This is the first step in making it to the floor of Congress for a vote.

Employers who depend on the H-1B visa, many of whom are outsourcing companies that rely heavily on foreign national workers, must make additional attestations in the LCA regarding displacement of U.S. workers and good faith efforts to recruit and hire U.S. workers before obtaining additional H-1B workers. There has been bi-partisan support for legislation that would curb alleged outsourcing abuses and this bill is part of that effort.

H-1B employers currently are exempt from the additional attestations if the individuals they wish to hire in H-1B status have Master’s degrees in a relevant field or earn a minimum annual salary of at least $60,000. The Act, first introduced by Darrell Issa (R-Calif.) in January, originally would have eliminated the Master’s degree exemption and pushed the minimum salary requirement to $100,000. The amended version, which was approved by the panel, would adopt “a new formula that is equal to the lesser of $135,000 or the mean wage for applicants’ occupation in their area (but subject to a floor of no less than $90,000). The bill would also require the wage levels in this formula to be indexed for inflation over time.” The bill would require more accountability. H-1B-dependent employers must do more than make attestations; they would have to provide documentation regarding their recruitment procedures.

This bill has had a mixed reception. Some protest that it would simply push jobs overseas. Others see it as a good way to help to curb abuses.

We will continue to follow the progress of this legislation.

Ninth Circuit Approves Travel Ban 3.0, In Part

The Ninth Circuit Court of Appeals has ruled to allow President Donald Trump’s latest travel ban proclamation to go into effect – at least in part.

Ruling on the injunction issued by the District Court in Hawaii that temporarily blocked the enforcement of the new ban, the Ninth Circuit determined that the travel ban could go into effect for now, except with regard to people with a “bona fide relationship” with close family or with an entity in the U.S., such as an employer or a university. This standard was borrowed from the Supreme Court’s ruling on the earlier travel bans.

Individuals from six countries — Chad, Iran, Libya, Somalia, Syria, and Yemen — may be banned from entry, unless they have a bona fide relationship with a U.S. family member or entity. The Ninth Circuit ruled that in addition to parents, spouses, and children living in the U.S., bona fide relationships could extend to grandparents, grandchildren, cousins, aunts, uncles, and brothers- or sisters-in-law. Entity relationships must be “formal, documented, and formed in the ordinary course,” including universities, businesses, and other institutions.

The proclamation’s bans on North Korea and Venezuela were not included in the original suit brought before the Hawaii District Court. Accordingly, it appears that entry as immigrants or nonimmigrants remains suspended for North Korea and entry in tourist or business visitor status remains suspended for officials of certain Venezuelan government agencies and their immediate family members.

The Administration plans to implement the suspension consistent with the Ninth Circuit’s ruling and will continue to appeal the case in order to be able to fully implement the travel ban proclamation.

Meanwhile, the Administration’s latest Executive Order regarding the refugee resettlement program is being challenged. Trump issued an Order on October 24 that restarted the country’s refugee resettlement program. That Order, however, imposed new restrictions on many of the countries involved in the program and indefinitely blocked the part of the program that allowed refugees to bring their spouses and children to the U.S. A number of refugee assistance groups have joined in a lawsuit in the U.S. District Court in Seattle seeking to enjoin this new Order. The groups are challenging the Administration’s authority to issue the new restrictions and arguing that these restrictions discriminate against Muslim refugees.

We will continue to monitor the implementation of the travel ban proclamation. If you have questions about how the latest developments affect visa application and/or travel plans, please reach out to your Jackson Lewis attorney.

 

Insights: Responding to Temporary Protected Status Extensions and Terminations

Having terminated Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone in May 2017 and having announced the limited extension of TPS for Haiti and Sudan until January and November 2018, respectively, the Trump Administration has turned its attention to Central America.

Approximately 300,000 immigrants from El Salvador, Honduras, and Nicaragua are protected from deportation by the TPS program. Hondurans and Nicaraguans were offered TPS protection in 1998 after Hurricane Mitch struck those countries. El Salvadorans received similar protection in 2001 after earthquakes ravaged that country.

TPS for Nicaraguans was set to expire in January 2018. Acting Homeland Security Secretary Elaine Duke concluded that conditions in Nicaragua have improved to the point where the protection is no longer mandated by statute. The Administration believes that conditions in the country are now actually better than they were before the hurricane. In addition, the Nicaraguan government has not requested an extension and apparently is prepared to repatriate its nationals. Accordingly, TPS for the approximately 5,000 covered Nicaraguans will be terminated. The program will be extended until January 2019 to give beneficiaries time either to seek another immigration status in the U.S. or prepare to leave the country.

TPS for Hondurans is set to expire in January 2018, as well. Because Duke did not believe she had enough information to decide regarding Honduran TPS, that benefit will be automatically extended until July 2018, for now.

TPS for El Salvador is set to expire in March 2018 and no decision on extension or termination has been announced.

With each extension, reconsideration is always possible. Therefore, Haitians, Nicaraguans, and their employers may have yet another reprieve. In an attempt to eliminate this ongoing uncertainty, Representative Carlos Curbelo (R-Fla.) introduced the bi-partisan Extending Status Protection for Eligible Refugees (ESPERER) Act. ESPERER would allow immigrants who were in the United States and received TPS protection prior to January 13, 2011, to adjust their status to legal permanent resident status.

Employers with TPS individuals on staff should monitor developments in this area and calendar necessary I-9 employment eligibility re-verification for affected individuals to maintain recordkeeping compliance. Due to the complexity of this area of law, employers should always consult with counsel to avoid inadvertently discriminating against affected employees.

Do Not Respond to Emails Requesting I-9 Information

The USCIS has issued the following notice regarding scam emails requesting I-9 information:

USCIS has learned that employers have received scam emails requesting Form I-9 information that appear to come from USCIS. Employers are not required to submit Forms I-9 to USCIS. Employers must have a Form I-9, Employment Eligibility Verification, for every person on their payroll who is required to complete Form I-9. All of these forms must be retained for a certain period of time. Visit I-9 Central to learn more about retention, storage and inspections for Form I-9.

These scam emails come from a fraudulent email address: news@uscis.gov. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address and a fraudulent download button that links to a non-government web address (uscis-online.org). Do not respond to these emails or click the links in them.

If you believe that you received a scam email requesting Form I-9 information from USCIS, report it to the Federal Trade Commission. If you are not sure if it is a scam, forward the suspicious email to the USCIS webmaster. USCIS will review the emails received and share with law enforcement agencies as appropriate.

For a full listing of Common USCIS Scams, please click here.

Mandatory E-Verify under Consideration in Congress

Every employer in the United States would be required to use E-Verify to determine whether employees are authorized to work if “The Legal Workforce Act of 2017” (LWA) is passed.

Supported by President Donald Trump and introduced by Representatives Lamar Smith (R-Tex.) and Ken Calvert (R-Cal.) to “turn off the jobs and benefits magnet” that attracts undocumented workers, LWA will create a database of information about every employee in the country. The bill was passed by the House Judiciary Committee on a party-line vote. Representative Bob Goodlatte (R-Va.), chairman of that committee, sees LWA as a way to prevent “future administrations from engaging in lax immigration enforcement.”

The bill includes:

  • Preemption of duplicative state E-Verify laws
  • Locking of Social Security numbers to protect against identity theft
  • Granting of a safe harbor to employers who use E-Verify “in good faith”
  • Raising penalties for knowingly hiring undocumented workers

Under LWA, employers must comply based on the number of employees they have as follows:

  • 10,000 or more employees – within 6 months after enactment
  • 500 or more employees – within 12 months after enactment
  • 20 or more employees – within 18 months after enactment
  • 1 or more employees – within 24 months after enactment

As currently written, agricultural labor and services are exempt from the bill’s strict schedule. Those employers would have 30 months to implement E-Verify. Companies that recruit or refer employees, however, must comply within 12 months.

Congressional Democrats have opposed a “stand-alone” E-Verify bill and have suggested that mandatory E-Verify could be included in a bill that would protect DACA beneficiaries. E-Verify’s 0.3% error rate, according to Representative Zoe Lofgren (D-Cal.) when discussing the 2015 version of LWA, would mean between 162,000 and 465,000 workers could be wrongly flagged as unauthorized to work in the first year following enactment and need to go through what can be a frustrating process of proving employment eligibility and possibly losing employment.

Trump has long been a proponent of mandatory E-Verify use. Following his “Buy American, Hire American” Executive Order, the USCIS encouraged all employers to use E-Verify.  In addition, recent budget proposals have included funding for an expansion of E-Verify.

Jackson Lewis attorneys will continue to provide updates as they become available.

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