TN Visa Program Subject to Higher Scrutiny, Possible Limits

It has been reported that the Trump administration is working toward limiting the number of TN visas. Based on the precepts of the Buy American, Hire American executive order, U.S. Trade Representative Robert Lighthizer has made reducing the TN program part of the renegotiation of NAFTA. The Administration reportedly wants to limit the number of professions eligible for the TN classification and possibly cap the number of visa renewals available. On the other hand, Canada and Mexico, whose citizens are eligible for TN visa status if they qualify under the NAFTA professions list, would like to expand the number of eligible professions to bring it more in line with current technology demands.

In 2016, Congress passed legislation that bars an administration from changing visa numbers during trade negotiations. It may be possible to avoid that bar, however, by simply modifying the operable treaty, rather than negotiating a new treaty. Of course, any new version of NAFTA would have to be ratified by Congress. There are those in Congress in favor of a reduction in NAFTA visas. Senator Charles Grassley (R-IA), in an October 2017 letter to Lighthizer , wrote “[t]his uncapped and under-recognized pool of high skill employees exacerbates the risk to American workers already present in certain industries that rely too heavily on foreign workers. It also constrains the U. S. Government’s total discretion over our immigration laws. . .” Although statistics regarding the number of Canadians in the U.S. in TN status are not readily available, Grassley believes that the overall number of TN visa status holders in the U.S. is approaching 100,000. Differing from Grassley’s view, legislators such as Representative Zoe Lofgren (D-CA), who represents Silicon Valley, emphasize the need for the “best and brightest,” and do not want to reduce the number of visas available.

Speaker Paul Ryan hoped to ratify a revised NAFTA during this legislative session but because negotiations are still in progress, it will likely have to wait until next year.

Even without treaty changes, we have already seen that TN applications are more highly scrutinized. Certain categories, such as economists, are subject to new guidelines, individuals’ credentials are being questioned, and even individuals who already hold approved TN visas and TN classification may be denied renewals.

Given the current uncertainty, employers may want to consider whether there are any alternative visa options for employees currently in TN status. If you have any questions about possible options, please reach out to your Jackson Lewis attorney. We will continue to follow the NAFTA negotiations and provide updates as they become available.

Number of Government Enforcement Investigations Doubles

ICE announced its enforcements investigations in the last seven months have already doubled last year’s total.

Since October 2017, ICE’s Homeland Security Investigations (HSI) opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. Thomas Homan, Acting Director of ICE, predicted in October 2017 that ICE would quadruple worksite enforcement investigations. Now, Derek Benner, head of the ICE HSI unit reported to AP that “another nationwide wave of audits planned this summer would push the total ‘well-over’ 5,000 by September 30.”

The stated purpose of these investigations is to create a “culture of compliance and accountability,” protect jobs for U.S. workers, eliminate “unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

The result has been the largest numbers of arrests and the highest penalties assessed in enforcement actions. In January, ICE agents served I-9 audits on 98 7-Eleven stores across 17 states, interviewed employees and managers, and arrested 21 workers. In April, at Southeastern Provision in Tennessee, ICE and the IRS arrested 86 individuals and executed search warrants to gather evidence regarding the company’s compliance.

In FY 2017, such actions against businesses netted $97 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines.

Investigations most often start with a notice of inspection alerting employers that ICE is going to audit their employment records for compliance with existing law. Companies then have three days to produce I-9 records. If employers are found not to be in compliance, civil penalties will be assessed. This can lead to criminal prosecutions. Unauthorized employees who are not legally in the U.S. may be detained and, ultimately, deported. I-9 audits can turn into criminal investigations, however, if certain factors exist.

ICE sees worksite inspections as “one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.” Given the government’s focus, preparing for possible inspections by auditing your employment verification processes and records is an essential precaution. If you have questions or concerns about how to proceed, please reach out to your Jackson Lewis attorney.

 

USCIS-DOJ Memorandum of Understanding Means Employers Can Expect Enforcement Action Increase

USCIS and the Department of Justice are teaming up and collaborating to “better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” They have entered into a Memorandum of Understanding (MOU) that will increase their ability to share information about cases and training and make referrals.

Last October, the Department of State and the Employee Rights (IER) Section of the Civil Rights Division entered into a similar partnership to “share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas such as H-1B, H-2A and H-2B.”

Just recently, one of the largest enforcement actions undertaken by the current administration, a raid at a meatpacking plant in Tennessee, resulted at least in part from an information sharing agreement between the IRS and banking institutions.

The pattern is clear. As part of President Donald Trump’s Buy American, Hire American Executive Order, the agencies responsible for granting immigration benefits and enforcing immigration laws are working together “to ensure the integrity of employment-based immigration programs and improve [their] ability to detect and prevent fraud” and protect the U.S. workforce.

The expansion of information sharing likely will lead to even more investigations, audits, and worksite visits. If you have any questions about how best to prepare, please reach out to your Jackson Lewis attorney.

 

DACA Litigation and Legislation Update

DACA was set to terminate on March 5, 2018, based on President Donald Trump’s September 2017 announcement. To avoid the termination, the President challenged Congress to negotiate a legislative solution for the Dreamers. Negotiations ensued, but so did litigation and the issuance of an injunction. A federal court ordered DHS to continue to accept DACA renewal applications and, eventually, the March 5th deadline passed. The U.S. Court of Appeals for the Ninth Circuit likely will be the next court to issue a ruling. Following that, the case likely will be taken up by the U.S. Supreme Court.

In the meantime, although DACA beneficiaries still have a “window of opportunity” during which they can apply to renew DACA status, the future is unclear. Legislation could offer a permanent solution, but pending bills have been blocked and not been passed in either the House or the Senate.

To find a more permanent solution for the Dreamers, Representative Carlos Curbelo (R-Fla.) is heading up the charge to force a vote on the House floor by way of a discharge petition. With a discharge petition, it is possible to bypass the Speaker of the House and bring a bill to the floor. It requires a simple majority of 218 votes and, assuming all House Democrats sign on, Curbelo would need an additional 25 House Republicans – as of May 15, 18 Republicans and one Democrat have signed. Assuming the discharge petition gathers the necessary support, the House would take up four bills using the obscure “Queen of the Hill” rule. Under that rule, the bill with the most votes, or a plurality, would pass.

The bills offered for consideration would include one bill selected by Speaker Paul Ryan (R-Wis.) along with:

The Securing America’s Future Act, sponsored by Representative Bob Goodlatte (R-Va.), which:

  • Creates a three-year renewable legal status for DACA beneficiaries
  • Ends “chain migration”
  • Ends the Diversity Lottery
  • Increases the number of Green Cards for skilled workers
  • Creates a new agricultural guest worker program
  • Strengthens border security

The DREAM (Development, Relief and Education for Alien Minors) Act, sponsored in the Senate by Senators Lindsey Graham (R-S.C.), Dick Durbin (D-Ill.), Jeff Flake (R-Ariz.) and Chuck Schumer (D-N.Y.), which:

  • Allows DACA recipients and other Dreamers to apply for Green Cards
  • Creates a path to citizenship
  • Improves college affordability

The USA (Uniting and Security America) Act, sponsored by Representatives Will Hurd (R-Tex.) and Pete Aguilar (D-Cal.) in the House, which:

  • Offers a permanent legislative fix for DACA beneficiaries
  • Institute smarter border security measures

Under the Queen of the Hill rule, House members may vote for more than one bill, but only the bill with the most votes would pass.

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

 

Requirements for H-1B Petitions Involving Third-Party Worksites Are Unlawful, Lawsuit Alleges

USCIS has exceeded its authority in issuing additional requirements on H-1B petitions involving third-party worksites, a suit filed in New Jersey seeking a temporary restraining order alleges.

Just before the 2019 H-1B filing deadline, USCIS issued a memorandum clarifying that petitioners who send employees to third-party worksites must provide significantly more evidence to show that a bona fide employment relationship exists between the employee and the H-1B petitioner. Among other things, this evidence may need to include: documentation of specific work assignments, copies of contractual agreements, itineraries, and detailed work statements covering the entire duration of the H-1B term of employment.

The new memo is aligned with President Donald Trump’s Buy American, Hire American Executive Order and is aimed at protecting U.S. workers. The Administration believes that abuses of the H-1B program, such as not paying the required wage or having workers do “non-specialty occupation” work that harm the U.S. workforce, are more likely to occur at third-party worksite.

The new requirements clearly place additional burdens on any H-1B employers who subcontract high-skilled employees.

Several small technology staffing companies along with a trade organization, the Small and Medium Enterprise Consortium, seeing this a threat to their business models, filed suit in New Jersey federal court seeking a temporary restraining order (TRO) to stop USCIS from enforcing the new memo.

The plaintiffs argue that the new policies go beyond the statutory authority granted to USCIS and that the memo, therefore, violates the Administrative Procedures Act (APA). The plaintiffs have suggested that rather than focusing on who is “bona fide employee,” USCIS should focus on who is an “employer” under the H-1B program. The plaintiffs also have argued that as a matter of public policy, the H-1B visa program was originally designed to ease the critical shortage of technology workers in the United States.

In support of the TRO, the plaintiffs state that the requirements in the policy memorandum will in many cases not be possible to meet, and that the denial of H-1B petitions on this basis will ultimately result in plaintiffs suffering “irreparable harm to [their] reputation and [their] ability to compete” as U.S. jobs will be sent offshore to providers abroad. USCIS has declined comment on the lawsuit.

These accusations may not be speculative. There have been reports of denials of H-1B extensions on the basis of the new policy memorandum. We will continue to monitor and report developments. Please contact a Jackson Lewis attorney with any questions.

Major Change in USCIS Policy on Accrued Unlawful Presence Likely to Impact F, M and J Status Holders

USCIS has posted a policy memorandum that will radically change current policy for students and exchange visitors.  The policy makes it much more likely that those in F, M or J status will find themselves accruing unlawful presence and becoming subject to three and ten-year bars to admission.

Under current policy there is a distinction between violating visa status and unlawful presence. Status violations include, among other things, unauthorized employment or participating in activities not authorized by the individual’s visa status.  Unlawful presence accrues when an individual stays in the United States beyond the date granted upon entry.  Unlike those in other nonimmigrant visa statuses, students and exchange visitors generally are not given a specific “end date” when they enter the U.S.  Instead, they are generally admitted for the Duration of Status (D/S), i.e., the length of their programs.  Under current policy, because they are issued no specific end date to their statuses, they cannot start accruing unlawful presence unless USCIS actually makes a formal finding of a violation of status or they are ordered removed, deported or excluded.

Now a simple violation of status (knowing or unknowing) without any formal finding can start the clock for unlawful presence.

According to the memo:

  • As of August 9, 2018, individuals in F,M or J status who have not been maintaining status will start accruing unlawful presence;
  • Individuals who fail to maintain status on or after August 9, 2018 will start accruing unlawful presence on the earliest of:
    • The day after they are no longer pursuing the authorized activity;
    • The day after they engage in unauthorized activity;
    • The day after completing the course of study or program including authorized practical training plus any authorized grace period;
    • The day after their I-94 expires (if one was issued with a date certain); or
    • The day after they are ordered excluded, deported or removed.

USCIS has stated that this new policy aligns with President Trump’s Enhancing Public Safety in the Interior of the United States Executive Order which directs strict enforcement of all immigration laws.  It is also in accord with the Buy American, Hire American Executive Order which restricts immigration in an effort to protect the U.S. workforce.   The Trump Administration has made it clear that it has concerns about students who work in the United States post-graduation on the basis of Optional, STEM or Curricular Practical Training.  For example, in the DHS Spring 2018 Regulatory Agenda, one of the items listed is Practical Training Reform to protect “U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas” and “to reduce fraud and abuse.”

The three- and ten-years bars to re-admission set out in Section 212(a)(9)(B) of the Immigration and Nationality Act (INA) are quite draconian.  Individuals who accrue 180 days, but less than one year of unlawful presence can be barred from returning to the United States for three years.  Those with more than one year of unlawful presence may be barred for ten years.  Waiver of the bars may be possible only in certain circumstances of extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident.

USCIS is accepting comments on the new policy memorandum until June 11, 2018. Jackson Lewis will continue to provide updates regarding enforcement of the proposed policy.

 

Temporary Protected Status for Honduras to End in January 2020

In a not unexpected move, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced on May 4, 2018 that Temporary Protected Status would terminate for Honduras on January 5, 2020. This will give the approximately 60,000 Honduran TPS beneficiaries eighteen months to arrange for their departure or seek an alternative lawful immigration status.  The American Immigration Council has noted that these TPS beneficiaries may have as many as 50,000 children who are U.S. citizens.

TPS for Hondurans began in 1999 as a consequence of Hurricane Mitch. Secretary Nielsen noted that “conditions in Honduras that resulted from the hurricane have notably improved . . . [and] Honduras has made substantial progress in post-hurricane recovery and reconstruction.”

Representative Ileana Ros-Lehtinen (R. Fla.), advocating for legislation that would allow immigrants who received TPS prior to 2011 to apply for legal permanent residence, stated: “Sadly, Hondurans are only the latest group of people in my South Florida community losing their TPS status this year following Haitians, Nicaraguans, and Salvadorians. The administration’s wrongheaded decision to rescind TPS for thousands of Hondurans in the United States will impact their lives in a tragic way. The loss of these hardworking people will have a negative impact on our economy, in addition to disrupting so many lives in our community.”

Other advocates for TPS have noted that Honduras is regularly listed as one of the world’s most dangerous countries and that Honduras is not ready to repatriate the TPS beneficiaries due to poverty, political unrest, a recent three-year drought and widespread gang violence.

Those Hondurans currently in TPS status will be able to re-register and extend their EADs until January 5, 2020. Details about this process will be forthcoming in the Federal Register. Hondurans should not submit re-registration applications until after the announcement appears.

Jackson Lewis will provide updates as they become available. We have developed a new tool to help employers determine whether TPS beneficiaries retain work authorization. To use the tool, go to: https://public.campaign.jacksonlewis.com/#content%7Crecord%7CTemporaryProtectedStatus. The tool will be updated regarding Honduras as soon as DHS publishes information about the re-registration process.

Temporary Protected Status for Nepal to End in June 2019

Temporary Protected Status (TPS) for 9,000 Nepalis nationals who have been living in the United States since 2015 will terminate as of June 24, 2019.

The Secretary of DHS Kirstjen Neilsen stated, “[T]he disruption of living conditions in Nepal from the April 2015 earthquake and subsequent aftershocks that served as the basis for its TPS designation have decreased to a degree that they should no longer be regarded as substantial, and Nepal can now adequately manage the return of its nationals . . . .” She further explained that TPS is being terminated because the “originating conditions” no longer exist.

Nepal was struck by a 7.8 magnitude earthquake in June 2015. There were a series of significant aftershocks. It was reported that 9,000 people died, 22,000 were injured, and more than 755,000 homes were destroyed.

In March 2018, the Catholic Legal Immigration Network (CLINIC) recommended to DHS another TPS extension for Nepal because the massive infrastructure damage caused by the earthquake had not yet been repaired. CLINIC noted that subsequent natural disasters (floods and landslides) have delayed the recovery, that 15 percent of Nepalis living in Nepal rely on money sent to them by relatives living in the United States in TPS status, and that Nepal was in no position to reabsorb 9,000 nationals at this time.

The termination of TPS for Nepal is just another in the list of countries that have lost protected status during the Trump Administration including Guinea, Sierra Leone, El SalvadorHaiti, Nicaragua, Sudan, and Liberia (Deferred Enforced Departure). A decision about whether to terminate TPS for Honduras is expected in early May. The only countries currently remaining on the list that have not been given termination dates are Somalia, Syria, South Sudan, and Yemen.

Nepali citizens currently in TPS status will be able to re-register and extend their EADs until June 24, 2019. Details about this process and the re-registration period will be published in the Federal Register. Nepalis should not submit re-registration applications until after that announcement appears.

Jackson Lewis will provide updates as they become available. We have developed a new tool to help employers determine whether TPS beneficiaries retain work authorization. To use the tool, go to: https://public.campaign.jacksonlewis.com/#content%7Crecord%7CTemporaryProtectedStatus. The tool will be updated regarding Nepal as soon as the DHS publishes information about the re-registration process.

Administration Pushes to Add Extreme Vetting to All Nonimmigrant Visa Applications

Proposed changes to Form DS-160 would include aspects of “extreme vetting” in all nonimmigrant visa applications. The public has until May 29, 2018, to submit comments to the Trump Administration proposal.

Visa applicants would be required to submit five years of social media handles on specific platforms and five years of phone numbers and email addresses, information on international travel, and any family history of involvement in terrorism. Diplomatic-type visa applicants would be exempted from this collection.

Critics, raising privacy grounds concerns, note such changes may have a chilling effect on the rights of freedom of speech and association of U.S. citizens as well as foreign-born individuals.

The Administration argues that asking these questions is necessary for national security. The changes are in line with one of President Donald Trump’s early executive orders: Protecting the Nation from Foreign Terrorist Entry into the United States, also known as the Travel Ban Executive Order, and his Presidential Memo on Enhanced Vetting Protocols and Procedures for Visas and Other Immigration Benefits. With that Memo, the President ordered the Secretaries of State and Homeland Security, in consultation with the Attorney General, to “implement protocols and procedures as soon as practicable that in their judgment will enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.” The new procedures were to focus, in part, on “ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.”

Additional security questions were first introduced by then-Secretary of State Rex Tillerson as optional. In cables to the Consulates, Tillerson advised the officers that, at their discretion, they may choose to use additional questions to screen certain populations that might raise security concerns. The DS-5535, Supplemental Questions for Visa Applicants, was introduced for that purpose.

Although the DS-5535 is more detailed, making additional screening questions mandatory for all nonimmigrant visa applicants likely will slow the visa process.

Please contact Jackson Lewis if you have any questions or would like assistance in submitting comments.

USCIS Releases Improvements to E-Verify System

After gathering feedback and extensive testing, USCIS has unveiled an updated and modernized E-Verify system to improve the user experience, efficiency, and reduce errors.

Enhanced features include:

  • Expanded helper text and visuals;
  • Real-time feedback on errors;
  • Auto-scroll feature that takes the user to the next section;
  • Streamlined case creation and case closure;
  • Modernization to reduce Tentative Nonconfirmations (TNCs)
  • A personalized “Are You Sure?” alert;
  • Combined DHS and SSA TNCs; and
  • Improved photo-matching features with the option to using photos from mobile devices.

The enhancements can be found on the E-Verify Enhancements April 2018 webpage.

The expansion of E-Verify is an important feature of President Donald Trump’s overall immigration plan. It is one of the changes that he believes would help to eliminate the jobs magnet that brings illegal workers to the United States and ultimately harms U.S. workers. In his proposed budget, Trump requested $23 million to expand E-Verify and make it mandatory nationwide.  The 2018 Omnibus budget, however, simply extended the E-Verify program until the end of the fiscal year.

A better user experience could add to the support for mandatory E-Verify use. In a survey of HR practitioners conducted by SHRM in late 2016, 92 percent would support a mandatory E-Verify system if system problems were addressed, including:

  • Strong safe harbor protection of good faith use of the system;
  • Better photo-matching tools to authenticate identify; and
  • Elimination of the Form I-9.

If you have any questions about the E-Verify enhancements, please reach out to your Jackson Lewis attorney.

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