Litigation Over H-4 EAD Rule Rescission Continues

The uncertainty regarding the rescission of the H-4 EAD Rule continues to drag on and the plaintiffs in Save Jobs USA v. United States Department of Homeland Security are getting tired of waiting.

Save Jobs, a group of technology workers who claim to have been displaced by foreign nationals, initially challenged the H-4 EAD Rule in 2015 after it was instituted by the Obama Administration. The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the Green Card process. Although Save Jobs lost in the U.S. District Court, it appealed to the Court of Appeals for the D.C. Circuit just before President Donald Trump was inaugurated. Since then, the government has been stalling and requesting that the case be held in abeyance because DHS is working on rescinding the Rule. If DHS rescinds the Rule, the case becomes moot.

Oral argument on the case was originally set for March 31, 2017. The government has asked for five continuances since March 2017:

  • A 60-day pause until April 3, 2017
  • A 180-day pause until September 27, 2017
  • A pause until January 2, 2018
  • A pause until February 2018
  • A pause until June 2018

On August 20, 2018, DHS filed another status report in the case, stating that “[a]s represented to the Court in prior status reports, DHS’s intention to proceed with publication of an NPRM [a new rule] concerning the H-4 visa rule at issue in this case remains unchanged.”

Save Jobs’ attorney, John Miano, noted that the DHS update “gives no time table and no explanation for the delay. . . . At this point it was clear that any proposed rule has just been sitting on someone’s desk for months.”

Close to 100,000 individuals hold EADs based upon the H-4 EAD Rule. They have been in limbo, unable to make decisions about how to move forward with their lives in the U.S. ever since the Trump Administration announced its intention to rescind the Rule. Employers have had to decide whether to try to make “back-up” immigration plans, where possible, for employees on H-4 EADs. The Business Roundtable sent a letter to DHS Secretary Kirstjen Nielsen expressing concern “about changes in immigration policy that are causing considerable anxiety for many thousands of our employees while threatening to disrupt company operations.” On the impending revocation of H-4 EAD status, the letter noted that “[o]ther countries allow these valuable professionals [spouses of H-1B beneficiaries] to work, so revoking their U.S. work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.”

We will continue to follow this litigation and any announcements regarding the NPRM. Meanwhile, individuals in H-4 EAD status should continue to apply for and renew H-4 EADs as early as possible. If you have any questions about how to apply and possible back-up strategies, please reach out to your Jackson Lewis attorney.

E-Verify Subject to Collective Bargaining

While I-9 compliance is important, companies cannot forget about other labor and employment laws. In May 2018, a meatpacking company in Illinois was caught between ICE and the National Labor Relations Board.

ICE conducted an audit of the company’s I-9s. Upon notice of the audit, the company began implementing E-Verify. An NLRB judge ruled that the company violated the National Labor Relations Act by:

  • Transferring work to temporary staffing agency workers without first notifying the union;
  • Dealing directly with the terminated employees regarding severance;
  • Failing to provide the requested documents to the union; and, importantly,
  • Unilaterally changing the terms and conditions of employment by instituting E-Verify without bargaining.

On August 27, 2018, a three-member NLRB panel upheld this decision (even though the union eventually agreed to the use of E-Verify through collective bargaining). The panel stated:

The [company’s] unilateral action compromised the Union’s ability, and the [company’s] incentive, to engage in that give-and-take process with respect to E-Verify by changing the starting point for bargaining. Once the [company] enrolled in the program, it had the greater leverage. The Union was placed in the position of offering concessions to persuade the [company] to restore the status quo and quit the program.

If you have questions about signing up for E-Verify or any other immigration issues in a union environment, please reach out to your Jackson Lewis attorney.

USCIS Explains New Policy on Discretionary Application Denials

Beginning September 11, 2018, USCIS immigration officers will have more discretion to issue petition and application denials without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs).

On September 6, 2018, the Ombudsman’s Office provided further details on the new policy change. The following was noted:

  • The new policy takes effect on September 11, 2018, and will apply to applications received by USCIS on or after September 12, 2018.
  • Adjudicators have full discretion to issue denials where the initial evidence submitted does not establish eligibility or there is no possibility of approval based on the evidence submitted.
  • The new policy is not meant to penalize those who make innocent mistakes or who misunderstand the requirements establishing eligibility, but is intended to promote complete filings so resources can be allocated to timely adjudicate petitions.
  • If the initial required evidence is missing, adjudicators will determine whether this was due to mistake or misunderstanding and to what extent the applicant tried to comply with the instructions and regulatory requirements. If it is determined that the “error” was due to a mistake or misunderstanding, an RFE would be issued instead of an outright denial. USCIS declined to clarify the factors for making a determination, but it provided, as an example, missing pages from an applicant’s passport.
  • USCIS will publish optional checklists outlining the initial required evidence for each visa classification. These checklists are intended for information purposes and are not meant to replace or change the regulatory or statutory requirements.
  • The new policy does not affect or change appeal rights.

The checklists were issued on September 11, 2018, and are available at USCIS.gov.

USCIS is in the process of training officers regarding the new policy memo, and the Field Adjudicators Manual has been updated with guidance on the subject. While USCIS has stated its intention not to penalize “innocent mistakes,” it is unclear how this will play out in practice. For instance, how will USCIS actually determine whether the error was just a mistake on the part of the petitioner or even on the part of the USCIS? Did the petitioner forget to include a transcript or was the copy of the transcript lost by USCIS after the filing arrived at the Service Center?

Jackson Lewis will be following the results of the new policy and will provide updates.

USCIS Raises Premium Processing Fee: Effective October 1, 2018

On October 1, 2018 the premium processing fee for all Forms I-129 (Non-Immigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker) will be raised from $1,225 to $1,410.  USCIS announced this almost 15% increase on August 31, 2018.

According to USCIS, this is the first adjustment in premium processing fees since 2010.  The agency noted that there has been a significant increase in demand for premium processing and that this has hindered its ability to process all petitions and applications.  It appears that USCIS believes that the increase in fees may reduce the demand.  Moreover, the agency notes the increase in fees will allow it to make needed investments in staff and technology.

While raising the fees USCIS is continuing and expanding its suspension of premium processing for most H-1B petitions into 2019. This expansion of the suspension is also meant to provide better service overall by allowing USCIS to catch up on its backlog.

H-1B Premium Processing Suspension Extended, USCIS Announces

While the hope was that the temporary suspension of premium processing for cap-subject H-1B petitions would end on September 11, 2018, USCIS announced on August 28, 2018, that the suspension will continue and be expanded to include other H-1B petitions.

As of September 11, 2018, the suspension will apply to the following H-1B petitions:

  • All H-1B petitions filed at the Vermont and California Service Centers.
  • Any H-1B petitions filed with premium processing before September 11, 2018, will continue to be processed but, if the USCIS does not take action within the 15-calendar-day period, the premium processing fee will be refunded. This suggests that USCIS actually may suspend premium processing prior to September 11, 2018.

Premium processing will still be available for the following H-1B petitions:

  • Cap-exempt petitions filed by cap-exempt institutions and organizations that are filed exclusively at the California Service Center.
  • “Continuation of previously approved employment without change with the same employer” petitions filed exclusively at the Nebraska Service Center requesting consular processing or an extension of stay.

USCIS has noted that this expanded suspension will allow the agency to:

  • Process long-pending petitions;
  • Prioritize cases reaching the 240-day mark; and
  • Prioritize other time-sensitive cases.

According to USCIS, the new temporary suspension is expected to last until February 19, 2019.

If you have any questions about this or other developments, please contact Jackson Lewis.

New Foreign-Student Work Restriction Has Outsourcing and Staffing Firm Suing

The Trump Administration is continuing its assault on outsourcing and staffing firms. The latest Administration focus is on the STEM OPT program.

In April 2018, without notice, USCIS made certain changes to its website. It declared, among other things, that a STEM OPT employer “may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).”  The surprise change sent shockwaves through the foreign-student community and the IT industry. The Small and Medium Enterprise Consortium filed suit in New Jersey federal court seeking a temporary restraining order against the enforcement of the new requirement.

Now, another group has filed suit in federal court in Texas, ITSERVE Alliance v. Nielsen, No. 18-cv-1823 (N.D. Tex. July 14, 2018), also seeking an injunction. The Alliance alleges that USCIS violated the Administrative Procedures Act (APA) by instituting the new requirement without a proper Notice-and-Comment Period. Moreover, ITSERVE alleges that USCIS is violating the law by enforcing the new requirement retroactively and denying immigration benefits to students who worked at third-party worksites while in STEM OPT. For instance, a STEM OPT student seeking a change of status to H might be denied such a change if he or she is unable to prove proper supervision during past work at a third-party location even before the publication of the new requirement on the website. When combined with other recent changes such as the new “unlawful presence” standard for students and the new guidance on initiating deportation proceedings when a case denial leaves an individual “out of status,” STEM OPT students are more at risk for deportation and bars on returning to the United States. The harm done is far-reaching. ITSERVE notes the fear that USCIS might start penalizing employers and even DSOs retroactively extinguishes the predictability that is necessary in today’s business environment.

Both cases are still pending. Jackson Lewis will continue to follow this litigation and provide updates. Please contact Jackson Lewis with any questions.

Trump Administration Largely Phasing Out TPS, But Legal Challenges Are Ongoing

Temporary Protected Status (TPS) may be an endangered species.  Having terminated TPS for Guinea, Liberia and Sierra Leone during the past year, the Trump Administration has turned its attention elsewhere.  There are currently ten remaining countries whose citizens are eligible for TPS.  Of those, six will be terminated over the next 18 months. The Trump Administration has announced the termination of TPS status for Haiti, Nicaragua, El Salvador, Nepal, Honduras and Sudan.  Somalia, South Sudan, Syria and Yemen for now remain in the protected category.

USCIS grants TPS to nationals of certain countries who are in the U.S. (legally or illegally) when conditions in that country “temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.”  Common grounds for granting TPS include highly destructive natural disasters or massive civil conflicts, or both, in certain countries.

There have been protests in response to almost every termination, and there has been litigation initiated to prevent the terminations (at least for now).  In one such case, on July 25, 2018, a U.S. District Judge in Boston ruled, over the government’s objection, that a case filed on behalf of TPS beneficiaries from Haiti, El Salvador and Honduras, Centro Presente v. Trump, may proceed.  Referencing discriminatory statements made by President Donald Trump, the standard applied by Department of Homeland Security, and a report about country conditions in Haiti, El Salvador and Honduras, the complaint alleges that the termination of TPS was based on racial animus.  In response, the government argued based on the Supreme Court’s decision in the Travel Ban 3.0 case that the executive had broad discretion to act in this area and thus was not subject to such a challenge.  The Court rejected that argument and held that the plaintiffs alleged viable constitutional claims.

The State Department in late 2017 warned the Administration about the unintended consequences of terminating TPS for El Salvador, Honduras and Nicaragua, stating that this “could worsen efforts to combat illicit drug trade and gang violence.”  Senator Robert Menendez (D-NJ) also warned that the termination of TPS would mean that the U.S. citizen children of TPS beneficiaries would be placed in danger by removal to countries where violence is rampant.

It is estimated that more than 300,000 immigrants and their families are currently living in the U.S. in TPS – most are from Haiti, El Salvador and Honduras.

Many TPS beneficiaries have  employment authorization documents (EAD) that may have expired and have been automatically renewed.  To determine expiration and renewal and what the next steps should be, employers can use this tool.

Have Unpaid Taxes? IRS Warns May Lose U.S. Passport

The IRS is reminding taxpayers to pay their taxes or face possible loss of their U.S. passports.

In partnership with the IRS, the Department of State (DOS) may deny passport applications, renewals, or even revoke passports of individuals with “seriously delinquent tax debts.” This is based on a section of an infrastructure bill, the Fixing America’s Surface Transportation (FAST) Act, signed into law in 2015. The IRS began sending certifications of unpaid taxes to the DOS in February 2018.

Fifty-one thousand dollars in back taxes, penalties, and interest is the general baseline for a “seriously delinquent” debt and the IRS must have filed a Notice of Federal Tax Lien.

To avoid passport consequences, the taxpayer can pay the debt in full, enter into one of a number of compromise agreements with the IRS, or have an appeal or a request for innocent spouse relief pending. There are exemptions for those in bankruptcy, victims of tax-related identify theft, those in hardship or living in federally declared disaster areas, as well as for those serving in combat zones.

The DOS will notify individuals in writing if a passport application is denied or if a passport has been revoked. Once the debt is resolved, the IRS will notify the DOS. It will be up to the DOS to approve the passport application or remove the revocation.

Should an individual whose passport application has been denied or who is in receipt of a notice of revocation need his or her passport for imminent travel or work, the tax debt must be resolved before there can be any remediation. Individuals who have received a notice of certification but no revocation may continue to travel on their current passports. The risk is that the passport may be revoked while the individual is travelling outside of the U.S.

Suits can be filed in U.S. District Court or Tax Court to determine if the IRS issued the certification of unpaid taxes erroneously.

President Donald Trump has promoted enforcement through agency coordination. This DOS-IRS alliance is only one of the ways that the IRS is coordinating with other agencies regarding immigration matters. For instance, the IRS has coordinated with ICE and reported large cash payments (thought to be “under the table payments” to undocumented workers) that led to one of the largest reported worksite raids.

Please contact Jackson Lewis if you have any questions about this or other developments.

 

Government Immigration Enforcement Activity at Record High

ICE enforcement continues to hit record highs. The Agency has announced that it has served more than 5,200 I-9 audit notices to business owners across the country since January 2018. This was accomplished in two phases. From January to March, 2,540 notices were served, leading to 61 arrests. Then, in the five-day period from July 16 to July 20, 2,738 notices were served and 32 arrests were made.

Overall, since the beginning of the fiscal year (October 1, 2017), 6,093 worksite investigations were opened and 675 criminal and 984 administrative arrests were made. In the prior fiscal year, 1,716 worksite investigations were opened, 1,360 I-9 audits were accomplished and 139 criminal and 172 administrative arrests were made.

The more than threefold increase in investigations is in line with President Donald Trump’s executive orders and is intended to “remind” employers that they must comply with the law.

Derek Benner, Acting Executive Director of Homeland Security Investigations stated:

“Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law. Worksite enforcement protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen[s] public safety and national security.”

While investigations are taking place all across the country, California continues to be a particular target for the Administration. The DOJ filed a lawsuit in March alleging that federal law pre-empted at least part of California’s sanctuary laws. The court found in the DOJ’s favor. It held that the California law discriminated “against California employers who wish to cooperate with immigration officials enforcing the 1986 Immigration Reforms and Control Act (IRCA), which requires employers to verify the identify and work eligibility of individuals they hire.”

Preparing for possible ICE investigations is the best offense in this environment. If you have any concerns or questions about how to make those preparations, please reach out to your Jackson Lewis attorney.

Haitian TPS Update: USCIS Backlog Results in Automatic 6-Month Work Authorization Extensions

USCIS will be issuing Notices of Continued Evidence of Work Authorization for certain Haitian TPS beneficiaries who applied for new EADs, but still have not received them.

In November 2017, DHS announced that Haitian Temporary Protected Status would terminate on July 22, 2019. At that time, individuals with TPS EADs that expired on January 22, 2018, were entitled to automatic extensions of their EADs for 180 days until July 21, 2018. Haitian TPS beneficiaries with EADs that expired on July 22, 2017, also were entitled to the automatic extension in certain circumstances.

It appears the USCIS has not been able to keep up with the demand for extension requests. The agency, without any formal announcement, has noted on its website that it will be automatically extending for another six months (until January 17, 2019) certain Haitian TPS EADs.

Haitian TPS beneficiaries will have work authorization valid until January 17, 2019, if:

  • The employee’s EAD has the code A12 or C19; and
  • The EAD expired on January 22, 2018; and
  • The employee applied for a new EAD during the last re-registration period: January 28, 2018, to March 19, 2018; or
  • The employee’s A12 or C19 EAD expired on July 22, 2017; and
  • The employee applied for a new EAD on or after May 24, 2017.

Because the beneficiaries entitled to this automatic extension already have applied for new EADs, the USCIS will be mailing individual Notices of Continued Evidence of Work Authorization that will confirm work authorization through January 17, 2019. These notices are being mailed during the week of July 22, 2018. Those who do not receive the new Notices within the week should contact USCIS at 202-272-8377 or the USCIS Contact Center number.

Until such Notice is received, eligible employees may provide their employers with the website notice as evidence of their automatic extensions.

Upon approval of an employee’s re-registration and EAD applications, a new EAD will be issued with an expiration date of July 22, 2019 – the final termination date of Haitian TPS.

For questions regarding this new automatic extension and its ramifications, please reach out to your Jackson Lewis attorney.

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