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.

USCIS Requests for Evidence to Petitioners Before Application Denials to Become Discretionary

As of September 11, 2018, 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).

This is yet another of the new policies in the wake of the Buy American, Hire American Executive Order (BAHA) that are making it harder to obtain immigration benefits.

USCIS Director L. Francis Cissna noted that this change in policy was “long overdue,” that predicts it will “discourage frivolous filings and skeletal applications that are used to game the system” and ultimately improve USCIS efficiency.

Previously, the policy on “initial” denials was that they should not be issued unless there was “no possibility” of approval. Under the new policy, officers have “full discretion” to issue denials when they deem it appropriate. If the officer believes that all initial evidence has not been submitted, a denial may be issued without giving the petitioner or applicant an opportunity to explain or submit additional documentation. A denial could be issued even in cases where USCIS itself has simply missed or misplaced some of the submitted documentation. This, in combination with the USCIS’ new policy of issuing NTAs with denials when the foreign national has no other underlying status, is not only harsh, but punitive.

Whether these new policy guidances will survive expected legal challenges is yet to be seen. Jackson Lewis will continue to provide updates as more information becomes available.

 

New USCIS Policy Guidance Emphasizes Initiating Removal, Deportation Cases

USCIS may be issuing Notices to Appear (NTAs) in business immigration cases due to a new policy guidance. NTAs are the initial charging documents in a removal or deportation case.

USCIS grants and denies immigration benefits, but it will be more directly involved in enforcement now. NTAs are served on immigrants or their attorneys. They generally set out the charges and may include the date, time, and location where the immigrant must appear for what is usually a Master Calendar hearing. At that hearing, the Immigration Judge (IJ) often will take the charged party’s plea and schedule the case.

According to the new policy guidance, USCIS will issue NTAs where:

  • Fraud or misrepresentation is substantiated;
  • An applicant is convicted of, charged with, or has committed acts chargeable as criminal offenses;
  • Naturalization cases (N-400 applications) are denied on “good moral character” grounds because of a criminal offense; and
  • An application or petition is denied leaving the applicant unlawfully present in the U.S.

This last ground is the one most likely to arise in business immigration cases. It would cover, for instance, employees who have long-pending extensions of stay denied after their underlying status expires. It also would cover employees who have I-140s and their concurrent I-485s denied if their underlying nonimmigrant status has elapsed.

In the past, in these situations, the employees were advised by the USCIS that they had to leave the U.S., but deportation proceedings through the issuance of an NTA was not immediately initiated. Beyond the fact that issuing more NTAs will lead to even greater backlogs in the already crammed dockets of U.S. immigration courts, once an NTA is issued, there will be severe consequences.

The foreign national must remain in the U.S. (probably without work authorization) until the hearing, to avoid becoming subject to a 5-year bar on re-entry. During this waiting period, however, the foreign national will be accumulating unlawful presence and, depending upon the length of the wait, could become subject to a 3- or 10-year bar on re-entry based on this accrual. The foreign national might be able to obtain a waiver of the 5-year bar and, if the case is ultimately dismissed, any unlawful presence would be wiped out, but the risks are there.

USCIS Director L. Francis Cissna explained the new policy:

“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it.”

Means of dealing with this latest assault on business immigration may include early extension and green card applications, appeals and litigation, as well as more consistent use of premium processing. Jackson Lewis attorneys are monitoring this policy change as it is implemented and are available to assist you in developing appropriate strategies and options.

Healthcare Implications of Supreme Court’s Decision on President’s Travel Ban

Now that the U.S. Supreme Court has upheld President Donald Trump’s Travel Ban in Trump v. Hawaii, it is important to think about some of the consequences the ban will have on various industries that rely on employing individuals from the affected countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Healthcare is one of those.

The U.S. is already facing shortages of doctors, nurses, and home health aides – especially in more rural areas of the country. The Migration Policy Institute has reported that 30% of all physicians and surgeons are immigrants. Syria and Iran rank 6th and 10th, respectively, of the top 10 countries that “supply” these doctors.

The Association of American Medical Colleges (AAMC), joined by more than 30 other organizations, filed an amicus brief in Trump v. Hawaii supporting their shared view that “[i]nternational health professionals provide essential care in teaching hospitals and their communities, particularly for rural and underserved populations,” and that excluding them “compromises the health security of the nation.” Certain specialties are more heavily populated by foreign-born physicians: geriatric medicine (50%), nephrology (almost 50%), internal medicine (close to 40%), and psychiatry (30%). There is some agreement among those in the industry that these specialties are less attractive to U.S.-born medical students because these fields are less financially lucrative, particularly when the jobs are outside of urban centers. There has been recent particular focus on this trend in psychiatry.

Although the Travel Ban has waiver provisions that theoretically would allow qualified physicians with job offers to apply for and receive visas and enter the U.S., as pointed out by Justice Stephen Breyer in his dissent in Trump v. Hawaii, the waivers are hard to come by and issued unpredictably. Beyond that, Travel Ban 3.0 and its previous iterations have had a chilling effect. Physicians from the affected countries who want to come to the U.S. to pursue their clinical medical training and remain after completion of that training are concerned about whether they can really hope to have a future in the U.S. Questions include:

  • Will they be able to enter and then travel freely?
  • Will their families be able to join them?
  • Will they be separated for long periods of time?

Related, hospitals and clinics are concerned about offering positions to these physicians for similar reasons. The National Resident Matching Program (the “Match”) is the national mechanism through which medical school graduates, whether from U.S. or foreign medical schools, who aspire to do their training in the U.S. rank their chosen graduate medical education programs at which to train. Through that process, medical school graduates ultimately match with training programs, which also rank their chosen or preferred candidates, and prepare to enroll as trainees in those programs. Employers are thus concerned that they could go through the annual Match, plan for the hiring of foreign medical graduates in their training programs, only to later be faced with a situation where those graduates cannot enter the U.S. to start working in their programs.

Of course, at any time, the Administration can remove countries from the Travel Ban list or add countries to that list, thus creating further uncertainty for employers and prospective immigrants.

Please reach out to your Jackson Lewis attorney if you have questions about how the Travel Ban may affect your workforce and the exemptions and waivers that may be available.

Pressure Mounting in Canada to End Canada-U.S. ‘First Safe Country’ Refugee Agreement

There is currently a debate in Canada regarding the pros and cons of the bilateral Safe Third Country Agreement (STCA). When the number of individuals leaving the U.S. to seek asylum in Canada increased in September 2017, questions about the agreement’s sustainability arose.

STCA was established in 2004 between the U.S. and Canada proving that refugees must seek asylum in the first “safe country” in which they arrive. This means that Canada may turn back those seeking asylum who arrive at land ports of entry from the U.S. and vice versa. There are some exceptions; for example, this agreement does not apply to individuals who arrive between ports of entry. In order to discourage individuals from making dangerous crossings between ports of entry, and to limit the number of asylum seekers, Canada has considered amending the STCA so that it would apply to anyone crossing the border. Since 2017, approximately 26,000 people have crossed the land border into Canada illegally – avoiding the strictures of the STCA.

In April 2018, the Canadian government renewed discussions with the U.S. Department of Homeland Security about amending the STCA. Since then, the STCA has become more controversial in Canada. Conservatives still want to limit the number of asylum seekers, but other, more liberal critics are concerned about sending refugees back to the U.S.

The Canadian Immigration and Refugee Protection Act requires a continual review of countries designated as safe third countries to ensure that those countries continue to meet certain humanitarian standards. The Canadian government website states: “Only countries that respect human rights and offer a high degree of protection to asylum seekers may be designated as safe third countries.” In response to the separation of children from their parents at the U.S. southern border, former-Canadian Foreign Minister and now-Chair of the World Refugee Council at Canada’s Center for International Governance Innovation, Lloyd Axworthy, has stated: “Trump policies that separated children from their families at the Mexican border has added to the real sense of unease and opposition to the agreement . . . .” The new U.S. policy of no longer providing asylum in cases of domestic abuse and gang violence also has increased opposition because it is incomparable to Canadian law.

The Canadian Immigration Minister, Ahmed Hussen, reported that the government is monitoring the situation and that Canada “will continue to be a country that is open to refugees and protected persons.” Some observers believe that the ongoing NAFTA discussions and the current tensions between the U.S. and Canada make this an inauspicious moment to reconsider the STCA.

Justice Department Seeks Injunctions Against California’s ‘Sanctuary Laws’

The Department of Justice filed suit in March challenging California’s so-called sanctuary laws. DOJ asserts that the state laws are preempted by federal law and requests injunctions to halt their enforcement.

On June 20, 2018, during a hearing on the injunction request, the parties were questioned by U.S. District Court Judge John Mendez, a George W. Bush appointee, for more than six hours.

The suit challenges three laws: AB 103 implements monitoring of immigration detention facilities; SB 54 prevents California law enforcement officials from providing release dates of prisoners; and AB 450 imposes restrictions and obligations on employers regarding worksite inspections by immigration enforcement agents.

Under AB 450, employers are prohibited from:

  • Voluntarily allowing ICE or other federal agencies from entering non-public areas, except when presented with a judicial warrant; and
  • Voluntarily allowing access to review employee records without a subpoena or warrant, other than the employer’s I-9s or other records required under federal regulations.

In addition, under AB 450, employers must notify the workforce of an audit of employee records and notify affected employees that their employment records had been identified as suspect.

Observers said Judge Mendez appeared skeptical of the government’s arguments, but he told the lawyers that he often plays devil’s advocate. In other words, they should not read too much into his questioning.

California Governor Jerry Brown, commenting on the suit, said that the Administration was declaring war on California. California and its Attorney General, Xavier Becerra, have been at the epicenter of opposition to Trump Administration policies. The state has filed a number of suits regarding Trump’s immigration laws, and California has been a target of ICE investigations and raids.

However Judge Mendez rules, this case is likely to find its way to the Ninth Circuit Court of Appeals.

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