No Citizenship Question on 2020 Census, Judge Rules

By Forrest G. Read IV on

The Department of Commerce has been enjoined by a federal judge from including the citizenship question in the upcoming Census.

The case began on March 26, 2018, when Secretary of Commerce Wilbur L. Ross, Jr., announced that he would reinstate a citizenship question in the Decennial 2020 Census. In 1960, out of a fear that the question would depress the count for already “hard to count” groups, the Census stopped including the citizenship question in the general census.

Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors and a group of NGOs filed suit in the U.S. District Court for the Southern District of New York, challenging the reinstatement of the citizenship question.

After a bench trial, U.S. District Court Judge Jesse M. Furman issued an opinion in New York, et al. v. U.S. Department of Commerce, No. 18-cv-2921 (Jan. 15, 2019), finding that Secretary Ross had violated the Administrative Procedure Act (APA) in certain ways, including: 1) the decision was arbitrary and capricious; 2) the Secretary had failed to notify Congress as required by the APA; and 3) the Secretary’s reason for instituting the question, in order to enforce the Voting Rights Act of 1965, was pretextual (although the Court did not specifically find that the reason was a pretext for discrimination). Judge Furman vacated the Secretary’s decision and enjoined the Department of Commerce from including the citizenship question in the Census unless and until the legal defects are cured.

Judge Furman’s opinion is extensive (277 pages). In the opinion, he detailed the history of the Census, expressed his concern over the government’s strenuous efforts to stop the litigation, and addressed all of the issues presented. He acknowledged the opinion was quite long, but explained that he wants to be sure there is an extensive record given the certainty of an appeal.

We will continue to follow this case as it progresses through the appeal process. The length of this process could in and of itself prevent the citizenship question from being included in the 2020 Census.

Will Ending Government Shutdown Turn on DACA?

By Peter Reca on

Is it possible that the Deferred Action for Childhood Arrivals (DACA) program might be the key to ending the government shutdown? A DACA-for-border-funding compromise that was taken off the table a year ago is again being talked about by some lawmakers. Here is an update on where DACA stands.

On September 5, 2017, then-Attorney General Jeff Sessions announced that DACA would be terminated. This led to multiple lawsuits filed in California, New York, Maryland, D.C., and Texas. Two of the cases resulted in injunctions that are still keeping DACA alive. The Administration has fought to get these cases before the U.S. Supreme Court, but has been denied. Of the five cases, only one, Texas v. Nielsen, is likely to support the termination of DACA, but even that case is being held up as the Court has ordered the government to expand its response to an amended complaint.

In the meantime, Congress had been under pressure to act before the announced DACA-termination date (March 2018). A number of solutions were floated. Measures were suggested that would trade help for the “dreamers” for border wall funding, including a bipartisan plan that provided $25 billion for border security (over a 10-year period), in exchange for DACA protections. But the Trump Administration rejected this plan in January 2018 on the eve of another government shutdown (that lasted for a weekend). Meanwhile, efforts to arrive at a legislative compromise slowed down once the initial injunction that prevented the Administration from terminating DACA was entered in the Regents of the University of California v. DHS. Even though DACA beneficiaries continued to be in limbo, the problem lost its immediacy.

Now, the government shutdown is creating another possible opening and a “DACA for the wall” deal is being floated by the Administration. Jared Kushner, who has been speaking with Congressional Democrats, stressed that any talk about DACA in which he has been engaged has merely been an attempt to “sound out” members of Congress. Members of Congress, including Senator Lindsey Graham (R-SC), have recently suggested various DACA fixes to end the shutdown. Senator Graham, however, noted that these proposals are in the “infant” stage.

We will continue to monitor developments. Please contact a Jackson Lewis attorney with any questions.

 

Does Presidential Tweet Portend Positive Developments in H-1B Visa Program?

By Forrest G. Read IV on

President Donald Trump surprised the immigration community recently with an encouraging tweet about H-1B visa holders:

H-1B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship.  We want to encourage talented and highly skilled people to pursue career options in the U.S.

While the President has long spoken about focusing on bringing the “best and brightest” to the United States, his Administration’s actions over the past year have made it more difficult for companies and individuals to obtain H-1B visas and have not made H-1B workers feel particularly secure in their statuses.  Among those actions are:

  • DOJ warned employers not to discriminate against U.S. workers in their hiring practices.
  • DHS has stepped up its worksite investigations of companies that hire H-1B workers.
  • USCIS issued guidance making it more difficult to employ H-1B workers at third party worksites.
  • USCIS no longer defers to approvals in prior decisions when a company requests an H-1B extension.
  • There has been a huge uptick in Requests for Evidence and denials of H-1B petitions.
  • There are plans to enshrine new definitions that will make it more difficult to qualify for H-1B status.
  • DHS plans to eliminate the H-4 EAD program that allows spouses of H-1B beneficiaries to work in the United States while they wait in long lines to become green card holders.
  • USCIS has issued policies that make it more likely that students will fall out of status.

We do know that DHS is planning to institute a new program that is likely to favor U.S. advanced degree holders in the H-1B lottery.  We also know that there have been bills introduced (although not passed) that would help to reduce the long backlogs for Indian and Chinese workers who are waiting in line for green cards.  (Of course this move would end up lengthening wait times for workers from other countries that have not been subject to backlogs.)

What could the President have in mind?  Is there substance behind this tweet? Jackson Lewis will continue to follow developments and provide updates.

Time to Prepare for the 2019 H-1B Cap Season

By Forrest G. Read IV on

Although the number of petitions filed has decreased slightly over the past couple of years, the H-1B cap has been reached every year for the last six years. Due to the high demand, businesses must be ready to file their H-1B petitions on April 1, 2019. Thus, it is time to start strategizing and preparing now.

While every year the process is stressful for employers and employees alike, this year promises to be even more so because it is not clear exactly how the program will proceed. The Department of Homeland Security (DHS) has proposed a new process: establishing a free electronic pre-registration and changing the random selection process in a way that likely will benefit U.S. master’s degree holders. While the electronic registration process could be a welcome addition, DHS does not know and has not made any definitive announcement as to whether it can implement the process quickly enough to have it ready for this year’s cap season.

This uncertainty makes it even more important to decide how you will choose to proceed. Many employers and attorneys are taking the conservative approach and preparing “as usual” to file full petitions on April 1. To decide on the best strategy for your company and what actions you should be taking now, please reach out to your Jackson Lewis attorney to discuss the options, challenges, and risks.

USCIS Ends Humanitarian Parole Program for Commonwealth of the Northern Mariana Islands (CNMI)

By Forrest G. Read IV on

USCIS announced that, effective immediately, it is terminating yet another humanitarian parole program. This one is for individuals living in the Commonwealth of Northern Mariana Islands (CNMI). This move will affect, among others:

  • Immediate relatives of U.S. citizens;
  • Certain “stateless” individuals;
  • Immediate relatives of CNMI permanent residents; and
  • Certain in-home foreign worker caregivers of CNMI residents.

This is how the transition will take place:

  • Upon expiration of authorization, USCIS will not renew any CNMI parole.
  • However, to ensure an orderly wind-down, there will be a 180-day transitional period and extension of employment authorization, where applicable, but in no event will parole extend beyond June 29, 2019.
  • Current parolees with requests for extensions of status and work authorization pending will receive letters granting 180 days of transitional parole. These letters will serve as evidence of work authorization.

CNMI, with about 50,000 inhabitants, is a 14-island archipelago in the Pacific, north of Guam, and over 3,000 miles from Honolulu. At the conclusion of World War II, the U.S., pursuant to a U.N. Security Council Resolution, administered the area, which had been under Japanese rule, as a trusteeship. In 1977, the Islands obtained U.S. commonwealth status. In 1986, Article III citizenship was extended to certain residents of CNMI. Then in 2008, the Consolidated Natural Resources Act (CNRA) began extending most U.S. immigration law to CNMI. In 2009, the U.S. began granting humanitarian parole on a case-by-case basis to CNMI inhabitants who found themselves ineligible for other U.S. statuses. This group included spouses, children, and parents of U.S. citizens. In 2011, the current parole program was instituted.

Other recent attempts by the Administration to eliminate humanitarian parole programs, such as DACA and TPS, have been held up by litigation.

Despite the termination of CNMI parole, foreign nationals in H-1B and H-2B nonimmigrant classifications who are admitted to perform labor and services in CNMI (and Guam) will continue to be exempt from the H-1B and H-2B caps.

New Dogs Greet the New Year!

By Forrest G. Read IV on

In November 2018, the Transportation Security Administration (TSA) notified the public of the opportunity to become a certified cargo screening canine!  Qualified explosives detection canine teams and their providers would be able to become registered Certified Cargo Screening Facility-Canines (CCSF-K9) in the TSA’s cargo screening program.

Until that time, only canines specially trained by TSA were available for this function. The idea was to enhance airport security in a cost-efficient manner by expanding the group of canines available to include third-party providers.

Rigorous assessments and background checks are conducted.  The first group of certified third-party canines has started in time for the holidays.  TSA Administrator, David P. Pekoske explained that “[t]he canine program is an integral part of TSA’s layered approach to security.”

Happy Travels, Happy Holidays, and Happy New Year!

What a Government Shutdown Means for Immigration Services

By Amy L. Peck on

Although the ongoing government shutdown is rooted in an immigration matter – the “wall” – its effect on other immigration processes is somewhat limited. Fee-funded activities are not affected, which means that USCIS offices will remain open, interviews and appointments will continue as scheduled, and most petitions and applications will continue to be accepted and processed. Because the Department of Labor’s funding has already been appropriated, LCA and PERM cases will not be affected.

The most noticeable effect from a domestic immigration perspective may be that the E-Verify program will not be operational. During shutdown it will not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve E-Verify Tentative Nonconfirmations (TNCs).

To minimize the impact caused by the government shutdown:

  • The “three-day rule” will be suspended; and
  • Time period for resolving TNCs will be extended.

Employers are warned not to take any adverse action against employees while an E-Verify case remains in an interim or limbo status. Please click here for E-Verify’s full announcement regarding the shutdown.

Other programs that will not operate during the shutdown due to lack of continuing funding include:

  • EB-5 Immigrant Investor Regional Center Program
  • Conrad 30 J-1 Program for Physicians
  • Immigrant visas for Non-Minister Religious Workers

For now, it seems that passport services will remain available and U.S. Embassies and Consulates abroad will continue to provide services to U.S. citizens, but other services may be limited. Jackson Lewis will continue to follow these matters and provide updates as they become available.

Litigation over H-4 EAD Rule Rescission To Move Forward

By Amy L. Peck on

The Court of Appeals for the D.C. Circuit has added Immigration Voice, a group that represents high-skilled foreign nationals, to defend the H-4 EAD Rule. Save Jobs USA v. United States Department of Homeland Security.

The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the green card process.

Save Jobs, a group of technology workers who allege that they have been displaced by foreign nationals, challenged the H-4 EAD Rule in 2015, soon after the Rule was instituted by the Obama Administration. Originally dismissed, the case made it to the D.C. Circuit in 2016. The Trump Administration changed the dynamics of the case because it aligned with Save Jobs and declined to defend the Rule. Furthermore, the Administration contended that it was planning to rescind the Rule, which would make the case moot. Since March 2017, the government has requested five continuances, asking the Court to hold the case in abeyance while it prepared to rescind the Rule through the rulemaking process. These requests were granted, but the Court, as well as immigrants who would be affected by the rescission of the Rule, have grown tired of the uncertainty and tired of waiting.

Immigration Voice asked to intervene in the case to defend the Rule. On December 17, 2018, the D.C. Circuit Court granted that motion and removed the case from abeyance. New briefs and reply briefs are scheduled to be submitted between January 16, 2019 and March 15, 2019.

In another effort to retain H-4 EADs, Representatives Anna G. Eshoo (D-Cal.) and Zoe Lofren (D-Cal.) introduced a bill that would prevent the Administration from revoking the H-4 EAD Rule. Referring to those who are on H-4 EADs as “American citizens-in-waiting,” Lofgren complained that “[p]rohibiting H-1B dependent spouses from working is of no benefit to our country” and that if the Rule is abolished, “many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration.”

In the meantime, the Administration continues to contend that it is working toward revoking the H-4 EAD Rule. Some have predicted that a move in that direction will be made before the end of 2018. Revocation of H-4 EADs will remove approximately 100,000 of mostly highly skilled workers from the workforce at a time when U.S. employers are struggling to fill technical jobs.

Jackson Lewis will continue to follow these events and provide updates as they become available.

Enforcement Activity Surges in FY 2018, ICE Reports

By Otieno B. Ombok on

ICE has had no official Director since June 2018, when Thomas Homan left the post, but that has not slowed down its worksite and other enforcement activities, according to the agency’s latest fiscal year report (FY 2018 covers October 1, 2017, through September 30, 2018).

Acting Director Ronald D. Vitiello’s nomination has been stalled in Congress at a time when critics are calling ICE a “deportation force” and agitate for its abolition. Homan, who called for a quadrupling of worksite enforcement, stated before leaving his post that ICE was simply enforcing federal laws, not operating on some rogue agenda.

ICE reported that worksite investigations surged in FY 2018 by “300 to 750 percent” over FY 2017. In 2018, Homeland Security Investigations (HSI), one of ICE’s three operational directorates, “opened 6,848 worksite investigations compared to 1,691 in FY 17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively . . . .”  Although criminal indictments and convictions have not yet risen, the numbers are expected to increase as the investigations that have been initiated develop.

ICE was created in 2003 by a merger of the investigative and interior enforcement elements of the former U.S. Customs Service and the Immigration and Naturalization Service. With a $6-billion budget and more than 20,000 law enforcement and support personnel, ICE does quite a bit more than deport individuals. Among other things, it conducts transnational investigations into smuggling, financial crimes, cybercrimes, exploitation of children, weapons smuggling, trade crimes, narcotics smuggling, identity theft, human rights violations, counter-terrorism, and visa security. It also upholds U.S. immigration law against those who present a danger to U.S. national security, are a threat to public safety, or undermine U.S. immigration laws. It is the Trump Administration’s focus on individuals who allegedly undermine U.S. immigration laws that has led to an exponential increase in worksite enforcement.

There have been many high-profile enforcement actions at meatpacking and agricultural firms, franchises, manufacturing companies, and businesses in sanctuary jurisdictions. ICE reported that in FY 2018, companies had to pay more than $10.2 million in judicial fines, forfeitures, and restitutions and that it levied a similar amount in civil fines. HSI encourages compliance by issuing civil fines in connection with I-9 audits and then, depending upon its audit findings, uses criminal prosecution against employers who knowingly break the law. HSI believes its stepped up enforcement efforts protect U.S. workers, reduce illegal migration, and eliminate any competitive advantage that those who hire illegal workers may enjoy.

If you have any questions about how to prepare in the wake of increased enforcement, reach out to your Jackson Lewis attorney.

Social Security Administration ‘No Match’ Letters to Employers Make Another Comeback

By Sean G. Hanagan on

Social Security Administration (SSA) has begun notifying employers that the information reported on an individual employee’s W-2 form does not match the SSA’s records with “Request for Employer Information” letters, known as “No-Match” letters.

SSA started sending these controversial informational requests in 1993, but the practice has waxed and waned in part due to litigation. In 2011, SSA resumed the practice of notifying employers of social security number mismatches. But in 2012, the Obama Administration decided to simply stop the practice.

Now, the letters are back! In July 2018, probably in response to President Donald Trump’s Buy American, Hire American Executive Order, SSA re-started the practice by sending “informational notifications” to employers and third party providers telling them of mismatches on their 2017 Forms W-2 and explaining where to find helpful resources. The plan was to send 225,000 of these notices every two weeks. Starting in Spring 2019, notices will be sent regarding 2018 Forms W-2s, but these letters, unlike the “informational” letters, will tell employers that corrections are necessary.

A mismatch does not necessarily mean that there is any wrongdoing. It can be caused by an administrative error: numbers can be reversed, names might be misspelled or changed, for instance, due to marriage. But once a letter is received, in determining how to respond, employers find themselves caught between agencies. SSA wants to maintain accurate records of earnings. ICE wants to ensure compliance with employment verification laws. And the Immigrant and Employee Rights Section of the Department of Justice (IER) wants to ensure that employers are not discriminating on the basis of citizenship, nationality or by pursuing unfair documentary practices in violation of the INA.

What is an employer to do?

  1. Don’t take any adverse action against an employee based on a No-Match letter alone.
  2. Compare the SSA information with the individual’s employment records.
  3. If the employer’s records match, ask the employee to check the name and number on his or her Social Security card.
  4. If there is a mistake on the card or the card needs to be changed or corrected, ask the employee to reach out to SSA to resolve the issue.

If the issue is not easily resolved, the employer should contact legal counsel. There are no “safe harbors.” Each case is different and must be analyzed individually to avoid missteps and penalties from either SSA, ICE, or IER.

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