In late June, the American Immigration Lawyers Association (AILA) held its annual immigration law conference in Las Vegas, Nevada. The conference featured a series of open forums where representatives from a number of government agencies met with immigration attorneys to discuss key updates and address specific questions about immigration adjudications, trends and policy.

Below is a summary of points that may be of particular interest to our employer clients and their ongoing efforts to employ foreign nationals in the United States:

  • U.S. Citizenship and Immigration Services (USCIS): USCIS reported capacity issues which have resulted in slower processing times for immigration benefits, particularly for H-1B petitions. USCIS is prioritizing cases filed under this year’s H-1B Cap where beneficiaries are receiving “cap gap” status and work authorization extensions through September 30, 2016. H-1B extensions in particular are taking approximately 8+ months to adjudicate, so employers and employees should plan accordingly. Employers should contact their Jackson Lewis attorney to discuss alternative strategies, such as premium processing, as necessary.
  • U.S. Department of Labor (US DOL): The US DOL Office of Foreign Labor Certification reported that its overall workload is increasing, and noted a particular increase in PERM labor certification filings. At present, it is taking DOL approximately 4-5 months to adjudicate PERM applications. The agency recently reorganized to address the increased workload, but employers should expect PERM processing times to slow over the coming months. Prevailing wage determinations are expected to continue to take approximately 10 weeks. Additionally, the DOL reminded attendees that new prevailing wage information would be published on July 1, 2016, so employers should anticipate that any determinations issued after this date will contain the new wage data.
  • U.S. Department of State (US DOS): The US DOS reported extensive wait times for nonimmigrant visa appointments at consular posts in India. The DOS is working to resolve the backlog, but at present, some posts are experiencing wait times of more than 100 days. Obtaining an expedited visa appointment for an urgent business matter is rare. Employers filing nonimmigrant visa petitions with USCIS requesting consular notification or those seeking to transfer employees from abroad pursuant to the Blanket L process should therefore plan for delays, as should employees currently in the United States who need to apply for a visa the next time they travel to India.

The U.S. Department of Justice is increasing civil monetary penalties substantially for employers who knowingly employ an unauthorized worker and for certain other immigration-related violations, according to an interim final rule the Department has published. The rule will take effect on August 1, 2016, and will apply to violations occurring after November 2, 2016. The increases come in response to the Bipartisan Budget Act of 2015, which requires agencies to adjust penalties for inflation.

Under the Immigration Reform and Control Act of 1986 (IRCA), it is unlawful for an employer to hire or continue to employ a person knowing that the person is not authorized to work in the United States. IRCA requires employers to verify employment eligibility of all employees by completing a Form I-9, and failure to comply with these rules subjects employers to substantial civil monetary penalties.

Under the interim final rule, the minimum penalty for a first offense of knowingly employing an unauthorized worker will increase from $375 to $539 per worker, and the maximum penalty will increase from $3,200 to $4,313 per worker. The largest increase raises the maximum civil penalty for multiple violations from $16,000 to $21,563 per worker. Paperwork violations can now be assessed a maximum penalty of $2,156 per relevant individual, up from $1,100. Finally, for unfair immigration-related employment practices, the maximum penalty increases from $3,200 to $3,563 per person discriminated against.

Author: By Matthew J. Martinez

 

The U.S. Supreme Court has agreed to decide whether a man born outside the U.S., out of wedlock, to a U.S. citizen father and a noncitizen mother could benefit from birthright citizenship. A decision in this case can mean protection from deportation for many. Lynch v. Morales-Santana, 804 F.3d 520 (2d Cir. 2015), cert. granted (U.S. June 28, 2016) (No. 15-1191).

Birthright citizenship laws have changed throughout the years, and when deciding whether someone is entitled to citizenship by birth, one must review the laws in place at the time of his birth. Luis Ramon Morales-Santana was born outside the U.S. to unwed parents – his mother was a noncitizen and his father was a U.S. citizen. At that time, the laws in place prohibited the transmission of citizenship to Morales-Santana by his U.S. citizen father.

The U.S. Court of Appeals for the Second Circuit, in New York, granted Morales-Santana citizenship, ruling that fathers should have the same benefits as mothers under the statute. The Court held that the citizenship rule applied “archaic and overbroad stereotypes” to parenting roles for children born to unwed parents and violated equal protection rights. The U.S. Department of Justice asked the Supreme Court to reverse this opinion, arguing that a court cannot create new citizenship rules and regulations.

Citizenship laws can be very confusing. Under current citizenship laws for children born out of wedlock to a U.S. citizen father and a noncitizen mother, the child benefits from birthright citizenship if the father is physically present in the U.S. five years prior to the child’s birth, two of which are after the age of 14 (military service counts). The child can also benefit from birthright citizenship if a blood relationship is established, the father agrees to support the child until he or she is 18, and, while the child is under 18, one of three factors is met: (1) the child is legitimated; (2) the father acknowledges paternity; or (3) paternity is established by court adjudication.

The Supreme Court reviewed a similar case several years ago, when the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, upheld the citizenship transmission rules. At that time, Justice Elena Kagan had to recuse herself, and the decision was 4 – 4.

Jackson Lewis will report on the Supreme Court’s decision, expected by June 2017. If the Court upholds the Second Circuit decision, ruling in favor of equal protection for fathers, it could result in citizenship rights for thousands of individuals born abroad to U.S. citizen fathers and may provide remedies to individuals currently facing deportation.

Disappointing many, the U.S. Supreme Court has tied 4-4 in a case appealing a nationwide injunction on the Obama Administration’s executive action expanding the Deferred Action for Childhood Arrivals (DACA) and creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. United States v. Texas, No. 15-674 (June 23, 2016).  The split leaves the district court injunction in place pending further action in the suit.

The eagerly anticipated decision will have a far-reaching and adverse impact on millions of undocumented immigrants. The Supreme Court deadlock means the appeals court ruling stands and continues to block programs. As a result, up to five million undocumented immigrants may not be allowed legal work authorization in the United States or be protected from deportation.

The Obama Administration utilized executive action to create DACA in 2012. Under DACA, certain undocumented immigrants who arrived as minors were able to defer deportation and receive employment authorization. The Administration expanded DACA and introduced DAPA in 2014 with further executive action. The DACA expansion would have increased the period of employment authorization for DACA beneficiaries to three years, instead of two. DAPA would have allowed parents of U.S. citizens or lawful permanent residents (green card holders) to apply for deferred deportation and employment authorization.

In February 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas entered a preliminary injunction, blocking the 2014 DACA expansion and DAPA creation. The U.S. Circuit Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the lower court’s injunction. The Obama Administration appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court’s decision strongly indicates, at least for the immediate future, that further executive action on immigration on a widespread basis may be difficult and that immigration reform will have to be addressed by Congress, if at all, a view shared by many opponents of the President’s actions. It also suggests strongly that immigration will continue to be a contentious issue in the upcoming Presidential and Congressional elections.

For more information, see Supreme Court’s Decision on Future of DACA and DAPA.

 

Noting media reports that up to 200 foreign workers hired by a Tesla contractor were able to come to the United States in tourist visa status to perform work at a construction project at a Tesla Motors Inc. paint facility in the United States, Senator Charles Grassley (R-IA) sent a letter, dated June 7, 2016, to the heads of the State Department, Justice Department, Department of Labor, and Department of Homeland Security questioning how such individuals would be eligible to perform work in the U.S. in B visa status.

USCIS provides that the B-1 tourist visa for business is intended only for business activities that are a “necessary incident” to business abroad. Such activities include attending meetings and conferences, engaging in negotiations, locating or entering into a lease for office space, and conferring with business associates.

The law specifically prohibits coming to the United States in B visa status to perform skilled or unskilled work. Under a B visa an individual generally cannot engage in any activity or perform a service that would constitute local employment for hire within the country. The State Department provides a narrow exception, for a “B in Lieu of H-1B,” where an individual otherwise meeting the H-1B requirements is employed by a foreign company and is coming to work at a U.S. client of the foreign company.

Employers should be extremely cautious when trying to staff projects using foreign workers here on a B visitor visa. Ensure these workers are not otherwise performing work requiring a temporary or permanent work visa.

 

 

Since January 1, 2007, Colorado employers have been required to verify the work authorization of all newly hired employees – in essence, comply with federal I-9 requirements. However, Colorado added requirements on top of the Form I-9: the completion and retention of a written or electronic version of an entirely separate affirmation form, and retention of copies of the identity and work authorization documents presented by the employee during the I-9 process. More than 200 employers have been subject to fines under the law and more than 7,000 random audits were conducted. The law called fines between $5,000 and $25,000.

House Bill 16-144, signed into law by Governor John Hickenlooper, eliminates the additional verification and retention obligations for Colorado employers beginning on August 10, 2016.

Employers in Colorado can take the following steps to prepare for the upcoming change in the law:

  1. Continue to complete the affirmation form and retain documents as required by the law for all newly hired employees until August 10, 2016.
  2. Create a plan to phase out the use of the affirmation form.
  3.  Assess and decide whether to continue to keep copies of I-9 identity and work authorization documents after August 10, 2016, or whether to stop since it is no longer required by law. It may be necessary to consult counsel about the advantages and disadvantages to the practice of retaining I-9 supporting documents.
  4. Continue to retain the additional affirmation form for active employees hired between January 1, 2007, and August 10, 2016. The law is silent regarding the requirement to retain the form, but it would be prudent to do so since the agency does retain the power to conduct an audit.
  5. Use this time to review current I-9 practices and processes and audit I-9s to ensure compliance with federal laws.

In a time when employers are typically seeing continued administrative requirements, this law is a welcome change!

 

 

 

 

A U.S. District Court in Seattle has ruled that the U.S. Department of State’s Visa Bulletin which governs how immigrant visas subject to numerical limitations are allocated, and indicates when intending immigrants may apply for the last stage of the permanent visa process is not a final agency action or decision and, therefore, cannot be challenged in court. While it is estimated that 20,000 or more individuals relied upon the published dates to initiate filings prior to the roll-back, Chief Judge Ricardo S. Martinez determined that the court lacked jurisdiction because the bulletin does not constitute a final action under the Administrative Procedure Act (APA), but instead merely sets out “informative” data.

In September 2015, the U.S. Department of State rolled back certain dates for immigrants who initially appeared to be eligible to file the final stage of their work-based permanent visa applications based on the October visa bulletin, which had been published two weeks earlier. The move adversely affected thousands of Chinese and Indian immigrants in the EB-2 category – people who hold advanced degrees or have exceptional ability, by 16 months and two years respectively.

Later that month a group of affected immigrants initially sought a temporary restraining order in the U.S. District Court for the Western District of Washington against the Department of State’s change which would have compelled the government to accept adjustment of status applications from those individuals who would have been eligible to submit applications based on the originally published visa bulletin (Chintan Mehta et al. v. U.S. Department of State et al., No. 2:15-cv-01543). The group claimed to have invested significant time and money in medical examinations and legal fees in readying their applications based on the originally published eligibility dates.

The federal court denied the request, stating the petitioners did not meet critical requirements for such an order, and that the visa bulletin is not a final agency action. The court said the revision merely “clarified an erroneous prior statement,” and, in falling short of substantially altering the rights of the plaintiffs, the claim lacked a likelihood of success under the APA. The judge seemingly nailed the coffin shut on the petitioners’ argument by noting that the revision serves the public interest as it corrected a statement that was contrary to statutory authority, and that the plaintiffs failed to show a due process violation, irreparable harm, or a violation of public interest.

The plaintiffs thereafter sought to create a class action lawsuit composed of individuals who would have great difficulty pursuing individual lawsuits. The Department of State and Homeland Security urged the federal court in Washington to dismiss the class action, arguing successfully that the court lacked jurisdiction.

For the fourth year in a row, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory cap for H-1B cap-subject petitions within the first five business days of April.

For fiscal year (FY) 2017, the cap was reached on April 7, 2016 as USCIS received over 236,000 petitions, setting an all-time record. USCIS completed the lottery selection on April 9, 2016 and finished all data entry of selected petitions on May 2, 2016.

As of this writing, most cap case petitioners or their attorneys already should have received an email notification and/or receipt notice if their petition was selected in the lottery. Further, because USCIS has begun premium processing cap-subject petitions with such request on May 12, 2016, all premium cases are expected to receive a result or USCIS’s request for evidence (RFE) notice by May 27, 2016.

Adjudication of non-premium cases will begin later and is likely to continue through mid-August. But USCIS could issue RFEs for these cases at any point during this period.

For petitions not selected, USCIS will reject and return the petition packages along with the filing fees, unless the petition is found to be a duplicate filing.   In recent years, returned packages have been received through June and we expect the same to be true this year given the higher filing volume.  While predictions are difficult until USCIS starts to return petitions that were not selected in the lottery, those who have not yet received an email notification or receipt notice may need to consider alternative visa options in the very near future.

 

An Administrative Law Judge of the National Labor Relations Board recently ruled that a meat processing company had violated provisions of the National Labor Relations Act when it utilized a temporary employment agency to fill vacant bargaining unit positions, and enrolled in the E-Verify program without first adequately notifying or bargaining with the local union. The Ruprecht Co., Nos. 13-CA-155048, 13-CA-155049, 13-CA-156198 and 13-CA-158317, JD(NY)-14-16 (May 13, 2016).

The company had lost 62 of its 92 bargaining unit employees due to resignation or termination following a government Form I-9 audit and the company hired seven temporary employees to do bargaining-unit work.  The union then filed unfair labor practice charges with the NLRB after the employer hired a temporary agency to fill the seven temps.  After a trial, the administrative law judge found the use of the seven temporary employees to be a “material, substantial, and significant” change and ordered the company to bargain with the union.

Following the audit, the employer implemented the E-Verify program, a system to verify work eligibility by comparing information from Form I-9 with Social Security Administration and Department of Homeland Security records.  The ALJ also ruled that the use of E-Verify was a change in the terms and conditions of employment and required notice to the union and an opportunity to bargain. He ordered the company to withdraw its enrollment in E-Verify and bargain with the union in good faith.  Finally, the ALJ decided that the Company violated the NLRA by unilaterally negotiating severance agreements with terminated employees.

The ALJ additionally ordered the employer to provide the union with copies of the letters it received from HSI (an investigative arm of the Department of Homeland Security) regarding workers with suspect employment documents within 10 days, post copies of the NLRB notice at its Illinois facility, and bargain with the union in good faith.

By Amy Peck and Patrick Peters

 

 

 

 

The Department of Homeland Security has begun implementing the new, additional 24 months of F-1 Optional Practical Training (“OPT”) work authorization for foreign students with a STEM major. This is a major in science, technology, engineering or mathematics.

What’s new?

  • New I-983 Form, Training Plan for STEM Students. – The employer and the student must complete and submit the form to the DSO (Designated School Official) for review and recommendation. The I-983 Training Plan requires an employer to make certain attestations, including:
    • It has sufficient resources and trained personnel to provide appropriate training to the student;
    • The student will not replace a full- or part-time, temporary, or permanent U.S. worker; and
    • The opportunity will help the student attain his or her training objectives.
  • The employer is expected to play an active role in ensuring the STEM OPT program’s integrity.
  • The student is required to complete a self-evaluation (which must be reviewed and signed by the employer) and submit it to the DSO annually.
  • The student and employer must report any material changes, termination, change in employer, or employee’s non-compliance (for example, there is no termination but the employee has not reported to work for five consecutive business days).
  • ICE may conduct site visits with 48 hours’ notice, except for site visits triggered by evidence of non-compliance, which are unannounced.
  • As of May 10, 2016, USCIS will no longer adjudicate pending 17-month STEM EAD applications. Instead, students should expect to receive a Request for Evidence (RFE) from USCIS. Upon receipt, a student must work with his or her employer to complete an I-983, submit the completed I-983 to the school’s DSO, and obtain a new I-20 with 24-months STEM OPT recommendation. Students who have previously received a 17-month STEM OPT may apply for the additional 7 months STEM OPT if he or she meets the following requirements:
    • The student must have at least 150 calendar days remaining before his or her 17-month STEM OPT EAD expires at the time the I-765 Application for Employment Authorization is filed with USCIS;
    • The student must properly file an I-765 application with USCIS requesting the 7-month balance before August 8, 2016; and
    • The student must meet all of the requirements for the 24-month STEM OPT extension under the new rule, including, but not limited to, the submission of the I-983 Training Plan to his or her DSO.

What remains the same?

  • Employer must be an E-Verify employer.
  • Students must submit a timely extension application, I-765 Application for Employment Authorization to USCIS before the current 12-month OPT expires.
  • Cap gap extension remains the same. For additional information, please visit https://studyinthestates.dhs.gov/stem-opt-hub and feel free to contact Jackson Lewis immigration attorneys.