Just as the H-2B visas for the first half of the fiscal year 2020 ran out (with some limited exceptions), the Department of Homeland Security (DHS), in cooperation with the Department of Labor (DOL), has released a new final rule on H-2B visas that changes and modernizes the recruitment process.

The rule, which becomes effective on December 16, 2019, provides that employers will no longer need to run an expensive print ad in a newspaper of general circulation for these temporary, seasonal, non-agricultural worker visas. Instead, DOL will post the job ad on its Seasonaljobs.dol.gov website.

DOL believes that this will improve efficiency. This also will help DOL expand and enhance its electronic job registry to publicize available job opportunities to the widest audience possible. Certifying Officers (COs) will retain the discretion to evaluate case by case whether additional recruitment might be necessary to ensure an adequate labor market test.

When the new rule was first published for comment in November 2018, DHS and DOL suggested that it would be up to the employer to place an electronic ad and ensure that it met all regulatory requirements (including that it be clearly visible on the website homepage, that it be easily retrievable and publicly accessible at no cost, that the website be functionally compatible with the latest browsers, and that it be easily reviewable on mobile devices). By the end of the comment period, DHS and DOL decided to handle the posting themselves since making the employer responsible for meeting the technical requirements appeared unwieldy, especially for employers who may not be tech savvy.

Commentators, particularly newspapers, defended the viability of print ads and expressed concern about the financial impact on newspapers and the fact that not everyone – especially in rural areas – has good or even adequate internet access. Nevertheless, DHS and DOL concluded based on data from PEW and others that the internet is becoming the most popular way to search for jobs and that the number of individuals without access to the internet is declining. In addition, DOL noted that, by its handling of the electronic posting, unscrupulous employers will have no place to “hide” advertisements.

DOL recognizes that the Seasonaljobs.dol.gov site is currently a bit “clunky,” so it is transitioning to a new platform that, among other things, will be mobile friendly.

When the H-2B recruitment postings begin, the site will include:

  • A concise job description with a link to the full description;
  • The geographic location of the position;
  • Accessibility to language translation services;
  • Accessibility to Web scraping; and
  • An enhanced RSS feed.

This move may be a first step toward eliminating the print newspaper ad requirement for PERM recruitments – likely an even bigger blow to newspaper classified ad revenue.

Please contact a Jackson Lewis attorney with any questions.

According to the DHS Fall Regulatory Agenda, the Administration is planning further restrictions to immigration regulations that, if enacted, will affect employers.

Over the past few years, DHS has changed the way it reviews H and L visa petitions from employers, which has resulted in significant increases in Requests for Evidence (RFEs) and denials. The rate of RFEs for H-1B visas has gone from 6% in FY 2015, to 24% in the third quarter of 2019. Denial of L visas has increased from 24% in FY 2016 to a current rate of 34%. The Administration’s proposed rules, if approved, would codify the review processes that produce these higher denial rates. Further, by going through the regulatory process, DHS will neutralize one of the arguments petitioners challenging denials are making in U.S. District Courts: that the denial was a violation of the Administrative Procedures Act (APA).

December 2019: “Strengthening the H-1B Nonimmigrant Visa Classification Program”

This new rule will revise some definitions (e.g., “specialty occupation” and “employer-employee relationship”) and ensure H-1B employees are paid wages that do not depress pay for American workers. This likely will be consistent with the RFEs many petitioners have been receiving. These question whether certain occupations really require a bachelor’s degree in a specific field, whether there is a bona fide employer-employee relationship when employees are working at third-party worksites, and whether a Level I job can qualify as a “specialty occupation.”

March 2020: “Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization”

Continuing its three-year campaign to rescind the policy that allowed dependent spouses of workers in H visa status to obtain Employment Authorization Documents (EADs), the Administration is predicting that the new regulation will be out of the Office of Management and Budget (OMB) and ready for final publication in spring 2020. A case challenging the legality of the H-4 EAD rule has been pending in federal court since before President Donald Trump’s inauguration. In early-November 2019, over the Administration’s objection, the Circuit Court of Appeals for the D.C. Circuit sent the case back to the District Court for a review on the merits. The case had been “paused” for close to three years because, the Administration argued, the case was about to become moot since the DHS intended to rescind the H-4 EAD rule. Eventually, the court grew tired of waiting. Perhaps the new rule will be published before the court acts.

September 2020: “Strengthening the L Nonimmigrant Classification”

This new rule would increase the requirements for L visas by redefining “specialized knowledge” and the employer-employee relationship. The regulations will also address appropriate wages for L-1 beneficiaries, even though there is no statutory wage requirement for this type of visa. The Department of State may have launched a “test balloon” on Ls. It had heightened the standard for evaluating Blanket L applications at Consulates from a “preponderance of the evidence” standard to a “clear and convincing” standard in an October 2019 Foreign Affairs Manual (FAM) change that was later withdrawn.

September 2020: “Enhancing the Integrity of Unlawful Presence Inadmissibility Provisions”

This rule makes it more likely for students and others in F, M, or J status to become out of status and subject to bars to U.S. re-admission for prior unlawful presence. USCIS’s attempt to do this with a policy change has been enjoined.

Presidential proclamations, policy announcements, and changes in the standard of review by administrative agencies can contradict the regulations those agencies implement. When that occurs, the government may be sued to enjoin implementation of the policy. By carefully wording responses to RFEs, and filing appeals for denials, employers can increase the chances their petitions will be approved. Policies that end up codified as regulations, however, make law suits against the government for violations of the APA less likely to prevail, and could make approvals for some employer petitions more challenging.

Jackson Lewis attorneys will continue to monitor this rulemaking and provide updates as they become available.

 

On November 21, 2019, the new EB-5 Investor Visa Program rules went into effect.  That was also the day that the government could have shut down if a spending bill or another continuing resolution had not been approved.  It could also have been the day that the EB-5 Regional Center Program would end.  But, Congress acted and passed a continuing resolution that would keep the government running and reauthorize the EB-5 Regional Center Program until December 20, 2019.

To avoid the continuing uncertainty of the sunsetting provision of the Regional Center Program, Senators Patrick Leahy (D-VT) and Charles Grassley (R-IA) have introduced the EB-5 Reform and Integrity Act of 2019 (S. 2540) that would extend the Regional Center Program until September 2024 and provide reforms to cure some of the weaknesses in the program including national security vulnerabilities.

The EB-5 Investor Visa Program allows foreign investors to apply for permanent residence if they make a substantial investment in a commercial enterprise in the United States and create or preserve at least 10 permanent full-time jobs for U.S. workers.  Under the DHS’s new rule, the standard investment amount increased from $1 million to $1.8 million.  For investments in a Targeted Employment Area, it increased from $500,000 to $900,000.

The Regional Center Program allows foreign nationals to pool investments and invest in regional centers that are in underserved areas to promote economic growth.  Regional Centers are designated by the government and allow for pooled investment.  There have been scams in the Regional Center Program and Centers have been closed due to fraud.  While Grassley and Leahy acknowledge that some of the EB-5 programs’ problems have been addressed by the DHS’ new rules, more needs to be done legislatively regarding the Regional Center Program.

Beyond extending the Regional Program for a full five years, their new bill would:

  • Give DHS more authority to deny or terminate applications for fraud or threats to public safety or national security;
  • Establish an EB-5 Integrity Fund to conduct audits and site visits;
  • Require background checks for project principals;
  • Require more disclosures;
  • Require more oversight for securities compliance;
  • Improve calculations regarding job creation; and
  • Improve accountability and transparency.

In addition to scam and fraud issues, the EB-5 program overall has been plagued by delays in processing times and priority date issues.  The Grassley-Leahy bill would help with this as well by providing for premium processing and adjusting fees to the point where efficient processing can be achieved.

With another government shutdown still looming before the end of the year, the future of the Regional Center Program is a “wait and see” game.  If you have questions about the EB-5 program and its future, Jackson Lewis attorneys are available to assist.

Poland will become the 39th member of the Visa Waiver Program (VWP) on November 11, 2019.

Polish citizens and nationals will be able to apply to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa stamp — but they first must register online with the Electronic System for Travel Authorization (ESTA).

Acting Secretary of the Department of Homeland Security Kevin McAleenan made this announcement, explaining that the move is “a testament to the special relationship that exists between our two countries, and the ongoing friendship and close cooperation on our joint security priorities.”

Polish citizens and nationals who already have valid B1/B2 visa stamps in their passports should continue to use those for travel to the United States. ESTA will start accepting online applications for the VWP from Polish citizens and nationals who do not have valid B1/B2 visas on November 11th.

In order to be eligible for the VWP, an applicant must have an e-passport enhanced with an embedded electronic chip for security. Because ESTA applications can take up to 72 hours to adjudicate, it is important to apply to ESTA a comfortable time in advance of the departure date.

ESTA authorization generally is valid for multiple trips to the United States for a two-year period or until the passport expiration date, whichever is earlier.

Should you have any questions about the VWP or ESTA, please reach out to a Jackson Lewis attorney.

Predictably, the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” has been blocked from going into effect for the time being. The U.S. District Court in Portland, Oregon, in Doe v. Trump, issued a 28-day temporary restraining order (TRO) in an unusual weekend session just before the proclamation was to go into effect on November 3, 2019.

The case, brought by a coalition of civil rights organizations, challenged the requirement that any foreign nationals seeking to enter the U.S. on an immigrant visa (as a Legal Permanent Resident or “Green Card” holder) must show to a Consular Officer’s satisfaction that they will be covered by an approved health insurance program within 30 days of entry or that they possess “the financial resources to pay for reasonably foreseeable medical costs.”

The plaintiffs challenged the Proclamation as “arbitrary, an ‘abuse of discretion’ and discriminatory.”

Judge Michael H. Simon was swayed by the plaintiffs’ arguments and decided that there would be irreparable harm if the Proclamation went into effect. He agreed to “‘freeze things the way they are’” for a determination on the merits. He set the hearing on a preliminary injunction for November 22, 2019.

An American Immigration Lawyers Association (AILA) representative stated: “‘We applaud the court’s ruling; countless thousands across the country can breathe a sign of relief today because the court recognized the urgent and irreparable harm that would have been inflicted in the absence of a TRO. This proclamation would permanently separate families and damage employers . . . . ’”

Jackson Lewis will continue to follow this case and provide updates as they become available.

In yet another update, DHS has announced that it is extending Temporary Protected Status (TPS) documents as well as work authorization until January 4, 2021 not just for El Salvador but also for Haiti, Honduras, Nepal, Nicaragua and Sudan.  These extensions are based on injunctions and stays in various pending casesRamos, Saget, and Bhattari. 

All TPS related documents, i.e. Forms I-94 and I-797 with expiration dates of January 2, 2020 (El Salvador, Haiti, Nicaragua and Sudan), January 5, 2020 (Honduras) and March 24, 2020 (Nepal) will remain in effect through January 4, 2021 if the individual beneficiaries filed for renewals during the applicable pre-registration periods.

Employment Authorization Documents (EADs) with the expiration dates noted in the Federal Register will be automatically extended through January 4, 2021.  Anyone with one of those expiration dates who already applied for an EAD extension but has not yet received it is also eligible for the automatic extension.

If the government prevails in the cases that are challenging the termination of TPS status, TPS will terminate and wind down as follows:

Haiti, Honduras, Nepal, Nicaragua, Sudan:  No earlier than 120 days from the issuance of the decision (with the possibility that Honduras and Nepal could be no earlier than 180 days if the government moves to vacate in Bhattari).

El Salvador: No earlier than 365 days from the issuance of the decision.

While no applications are currently necessary to receive the above automatic extensions, the government has reserved the right to require applications at a later date.

For more information on how these extensions and termination policies apply in specific circumstances, Jackson Lewis attorneys are available to assist you.

 

The Fairness for High Skilled Immigrants Act of 2019, introduced early in 2019 in both the House and the Senate (H.R. 1044 and S. 386), aims to eliminate the Green Card backlog for Indian and Chinese nationals. In July, the bill passed the House.

The Fairness bill would eliminate the per-country cap for employment-based immigrants and increase the per-country limitation for family-based immigrants. It eventually included a “do no harm” provision, which provides that anyone who had an approved employment-based immigrant petition (Form I-140) when the bill went into effect would not suffer any adverse effects.

Senator Charles Grassley (R-Ia.) introduced amendments to S. 386 that would have affected H-1B petitions. The amendments include an internet posting requirement, an LCA fee, and the elimination of the B-1 visa in lieu of H-1B visa status. Although the Fairness bill had bipartisan support, it was controversial. Opponents argued the bill pitted immigrants against each other – helping Indian nationals to the detriment of foreign nationals from other countries in what seemed to be a zero-sum game. Senator Rand Paul (R-Ky.) blocked the bill because it did not contain a “carve-out” for nurses. He introduced the BELIEVE Act, which would have made more visas available annually.

In mid-October, the Fairness bill again was blocked, by Senator Dick Durbin (D-Ill.) this time. Senators Durbin and Patrick Leahy (D-Vt.) introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, which is seen as a “win-win” solution, like Senator Paul’s proposal. The premise is simple: with more than four million immigrants on the Green Card waiting list, the number of visas available must increase. Under the RELIEF Act, the backlogs would be eliminated over a five-year period on a first-come, first-served basis; country caps would be eliminated; “aging out” children would be protected; and there would be a “do no harm” provision. Changes also include: (1) making immigrant visas available immediately for spouses and children of Green Card holders; and (2) providing that derivative beneficiaries of employment-based petitions be exempt from the Green Card limits. This would add tens of thousands of visas to the number currently available.

The RELIEF Act is endorsed by many immigration advocacy groups, as well as IEEE-USA, an association for engineering, computing, and technology professionals. According to Senator Leahy: “The mismatch between the supply and demand for green cards has left millions of immigrant families in legal limbo, stuck in a years-long backlog waiting for the chance to contribute to the nation.” To him and Senator Durbin the RELIEF Act is “commonsense legislation.” Others, however, believe that this approach will simply scuttle the Fairness Act – and there will be no progress at all.

A group of Democratic Senators are seeking a hearing on the various proposals.

Four thousand Liberian holders of Deferred Enforced Departure (DED) status and their roughly 4,000 U.S. citizen children may have to leave the United States because of the decision in African Communities Together v. Trump. Judge Timothy S. Hillman of the U.S. District Court for the District of Massachusetts decided that the Court lacked the authority to compel President Donald Trump to act to extend DED for those currently in that status.

DED status (formerly known as Extended Voluntary Departure), like Temporary Protected Status (TPS), is granted to individuals in the United States who cannot return to their home countries because of political or civil conflict or natural disasters. A major difference is that TPS was created by Congress and DHS was given discretion to grant, extend or terminate the status. DED is a Presidential grant. Liberia is the only country that currently has DED status although it has been granted to other countries in the past.

In response to a long period of civil war in Liberia, President George W. Bush in 2007 granted DED to Liberians when their TPS expired. Since then, Liberian DED was continually extended until March 31, 2018, when it was terminated by President Trump and Liberians received a 12-month wind-down period until March 31, 2019. In response, the African Communities lawsuit was filed seeking injunctive relief. Next, President Trump reconsidered and extended the wind-down period until March 30, 2020. In court, the plaintiffs argued that there is still reason to extend DED because of political instability and Ebola. They argued that eliminating DED now would hurt local communities and particularly the health care industry that employs many Liberians. They further argued that the government’s decision was based on discriminatory animus – reminiscent of arguments in the TPS and DACA cases.

There has been a legislative response but to date no resolution. Representative David Cicilline (D-RI) introduced the Liberian Refugee Immigration Fairness Act of 2019 in March. The bill would provide legal permanent residence to Liberians who have been living in the U.S. in DED status since 2014. Relief for Liberians was also included in H.R. 6, the American Dream and Promise Act of 2019 that passed in the House.

Reports are that the Liberian plaintiffs are considering an appeal.

Temporary protected status (TPS) for El Salvadorans in the U.S. has been extended through January 4, 2021, under an agreement with El Salvador, the Department of Homeland Security announced on October 28, 2019. There are 250,000 El Salvadorans in the U.S. with work permits on TPS.

The agreement provides that the two countries will cooperate on information sharing, border security, and “confront illegal migration.” The agreement also provides a 365-day transition period.

Since October 2018, when the U.S. District Court for the Northern District of California, in Ramos v. Nielsen, issued a nationwide preliminary injunction blocking termination of TPS for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, DHS has been extending TPS and work authorization into 2020 for those individuals. In March 2019, TPS beneficiaries from Nepal and Honduras received similar treatment. If the preliminary injunction is lifted, DHS promised an “orderly transition” of 120 days or the previously announced termination date.

Acting Director of USCIS Ken Cuccinelli explained that this is not an extension of TPS for El Salvador, as that has a specific legal meaning, but “[r]ather, work permits for Salvadorans will be extended for 1 year past resolution of litigation for an orderly wind down period.” The Administration still wants to repatriate Salvadorans, but recognizes that “a sudden inflow of 250,000 individuals to El Salvador could spark another mass migration to the U.S. and reinvigorate the crisis at the southern border.”

Additional information on implementation of the extension will be published in the Federal Register. Please reach out to a Jackson Lewis attorney for details and specific advice.