Continuing the Administration’s high scrutiny of businesses using foreign workers, including highly skilled visas, the Department of Homeland Security has announced that it will be conducting inspections of employers employing F-1 students using STEM Optional Practical Training to work. Under the STEM regulations, ICE has the discretion to conduct on-site inspections. Reportedly, it has started inspections.

The purpose of the inspections is to confirm that employers and student-employees are complying with all STEM OPT requirements and attestations in the Form I-983, Training Plan for STEM OPT Students.

The Form I-983 requirements are:

  • The employer has sufficient resources and trained personnel to provide appropriate training to the student;
  • The student will not replace full-time or part-time, temporary, or permanent U.S. workers;
  • The student’s compensation and other working conditions are commensurate with those of similarly situated U.S. employees;
  • The student will have the opportunity to attain training objectives;
  • The employer plays an active role in ensuring the integrity of program;
  • The student completes an annual self-evaluation that is reviewed and signed by the employer annually and submitted to the DSO; and
  • The student and employer report any material changes, termination, change in employer, or employee’s non-compliance with the program (e., failure of the student to report for work for five consecutive days).

If violations are discovered, the consequences can be dire — a student can be found “out of status” and future adjudications could be negatively affected.

In addition, under the Administration’s focus on possible “fraud” at third-party worksites, ICE likely will focus on STEM OPT students who are training at their employer’s client sites. This is typically found in the IT sector.

To prepare, employers should consider:

  • Training a first-responder and a back-up staff member to interact with the ICE inspector;
  • Ensuring the relevant student-employees and managers are aware of everything in the Form I-983; and
  • Maintaining a process for reviewing Forms I-983 to ensure compliance and appropriate updating.

According to the regulations, ICE will give the employer two days’ notice before the inspection (unless the inspection is based upon a complaint). That may not enough time to prepare if the student is at a client site.

If you have questions about these inspections, please reach out to a Jackson Lewis attorney. We are available to help you audit Form I-983 compliance and develop processes so that you are “prepared.”

 

 

 

The Fairness for High-Skilled Workers Act has passed the House of Representatives, and is pending before the Senate where it may pass by unanimous consent (i.e., with no actual vote or hearing).

On its face, the Fairness Act seems fair. By eliminating the 7% per country cap, Indian nationals and Chinese nationals who have been waiting and would continue to wait for years to capture green cards would be placed at the front of line. But this would be at the expense of workers from other countries who are also important to the United States.

About 25% of all STEM workers in the U.S., including those in the fields of healthcare, physical science, computer, and math, are foreign-born and that figure is on the rise. One quarter of all doctors in the U.S. are foreign-born — many from sub-Saharan Africa — and are particularly important in poor, rural areas of the country where physicians are scarce. One in five pharmacists and one in four dentists are foreign-born. Other types of healthcare workers come from Asia, Mexico, Central America, and the Caribbean and our need for these workers rises as baby boomers age.

If the Fairness Act were to pass, recruiting from countries other than India and China might become more difficult, and this talent may well turn elsewhere. New Zealand, Ireland, Australia and the UK are also dependent on foreign-trained doctors.

High-tech workers from India and China are also important to the U.S. and its economy; but our current immigration system is driving them out as well. This started in 2008, when it became difficult for high-tech companies to get the number of H-1B visas they needed. That frustration has grown with the increased scrutiny of H-1B petitions and the long green card waiting lines. Indian and Chinese talent is heading for other countries, and Canada is welcoming them and their companies with open arms. South Africa, Argentina, India, Chile, Japan, Hong Kong, South Korea, Israel, Australia, and Ireland also are popular competitors.

Quotas of one kind or another have been part of the U.S. immigration system since the early part of the 20th century. Literacy requirements limited immigration from some of the poorer countries of the world. Country-of-birth quotas benefited those from the UK, Ireland, and Germany at the expense even of those born in southern and eastern Europe. The 1965 Immigration and Nationality Act (the Hart-Celler Act), which is the basis of our current system, abolished national origin quotas (to eliminate discrimination) and focused on family reunification. The 7% annual ceiling on the number of immigrants from any one country was established. The ceiling was not meant to be quota, but rather a “barrier against monopolization.”

Senator Rand Paul, who opposes the Fairness Act, introduced the BELIEVE Act (Backlog Elimination, Legal Immigration and Employment Visa Enhancement Act) (S. 2091) on July 11, 2019. That bill would simply quadruple the number of employment-based visas by doubling the number available annually and exempting dependents from being counted toward the annual quota of visas. His bill also would exempt all shortage occupations from green card limits.

The Fairness Act may be just an interim solution. Rather than pitting family-based immigration against employment-based immigration and rather than pitting one country against another or one industry against another, perhaps it is time for legislation like the BELIEVE Act that would simply increase the number of green cards available to everybody.

 

The challenge over the rule providing work authorization for spouses of certain H-1B workers who are in the Green Card process finally will be heard before the U.S. Court of Appeals for the D.C. Circuit on September 27, 2019.

For nearly three years, since the Trump Administration made it clear that it planned to rescind the policy permitting issuance of H-4 Employment Authorization Documents (EADs), spouses of H-1B workers with H-4 EADs have been living with a “Sword of Damocles” over their heads – fearing their work authorization could be eliminated at any time. Some have put their lives “on hold” because of the economic uncertainty and others are finding it difficult to obtain job offers because companies are hesitant to invest in training people who might soon lose their work authorization.

In 2015, Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs, challenged the Obama Department of Homeland Security’s (DHS’s) authority to enact the H-4 EAD Rule. Eventually the case landed in the D.C. Circuit Court of Appeals. The Trump DHS has demonstrated reluctance to defend the rule because of its plan to rescind it – opting to regularly request “pauses” in the litigation. To date, DHS has requested more than six “pauses” in the litigation based on its assertions that a new rule rescinding H-4 EADs would soon be published and that publication would moot the lawsuit. However, on September 27, 2019, two and a half years after it was originally scheduled, oral argument in Save Jobs USA v. United States Department of Homeland Security will take place. The Court decided to move forward over the DHS’s objection.

In its most recently denied request for yet another pause, DHS stated the rule is still going through the regulatory process and the earliest planned date for publication in the Federal Register would be in Spring 2020 – although DHS noted that timeframe is “aspirational.” The rule is still being considered by the Office of Information and Regulatory Affairs (OIRA). The hold-up appears to be due to concerns about economic impact. Since February 2019, there have been eight meetings with interested parties who have been providing specific information and data about the potential impacts. Many believe the losses to the economy and losses to tax revenues would far outweigh any possible gain for U.S. workers.

To forestall the rescission (and end the uncertainty), in May 2019, Representatives Anna Eshoo (D-Calif.) and Zoe Lofgren (D-Calif.) reintroduced the H-4 Employment Protection Act to prohibit the Trump Administration from eliminating the rule. Eshoo and Lofgren said in a press release, “H-4 visa holders deserve a chance to contribute to their local economies and provide for their families. This is a matter of economic fairness and this legislation ensures it will continue.” The legislation has been referred to the House Subcommittee on Immigration and Citizenship.

For now, H-4 EAD holders can continue to renew their work authorizations. Jackson Lewis attorneys will continue to monitor developments and provide updates as they become available.

 

In August 2019, the Department of Homeland Security extended Temporary Protected Status (TPS) for Syrian beneficiaries until March 31, 2021. Now is the time for these beneficiaries to re-register and apply to extend their Employment Authorization Documents (EADs).

On September 23, 2019, Syrian re-registration instructions were published in the Federal Register. All applicants who wish to extend their status through March 31, 2021 must re-register and apply for renewal of EADs by November 22, 2019.

Recognizing that beneficiaries may not receive new EADs before their old ones expire, EADs will be automatically extended for Syrian nationals through March 28, 2020 as long as applicants have timely re-registered and applied for renewal. While TPS extension for Syrian nationals was not unexpected, the Trump Administration has recently sought to restrict or terminate TPS for citizens of other countries, which attempts are the subject of ongoing litigation, and it opted not to request TPS for Bahamian nationals in the Dorian aftermath.

If you have any questions about the application of these rules or how to complete Form I-9s for TPS beneficiaries, Jackson Lewis attorneys are available to assist you. To review employment authorization for all TPS beneficiaries, please click here to access our TPS tool.

Since 2017, USCIS under the Trump Administration has essentially directed its adjudicators to find ways to deny H-1B petitions. The most recent statistics on Requests for Evidence (RFEs) and denials certainly support this, but evidence has been made available for analysis.

Through a FOIA request, instructional documents for USCIS adjudicators issued after President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA) provide guidance on denying benefits to foreign nationals and the companies that want to hire them. BAHA has become the new “catch-all” for enacting immigration policies without legislative or public comment or support. This “non-transparent” process has been partially revealed.

Denials of H-1B petitions used to be rare occurrences. In 2015, the denial rate was 6% — now, it is 32%. RFEs were hardly an everyday occurrence – now, 60% of H-1B petitions receive RFEs. Two USCIS memos issued in 2017 and 2018 have boosted the RFE and denial rates and particularly affect computer programmers and IT professionals working at third-party locations.

In one released document, adjudicators are given close to 100 pages with step-by-step boilerplate for issuing RFEs — but the Administration’s discussion of the statutory support for these RFEs is redacted, perhaps because the new “rules” are not supported by the law. In another, USCIS makes clear that adjudicators should not defer to prior approvals and should remember the petitioners bear the burden of proof. The documents show that:

  • Adjudicators are directed to particularly analyze whether Level I and Level II wages are appropriate and issue RFEs asking for further information to justify the wage level.
  • USCIS instructs its adjudicators that even when a bachelor’s degree would appear to be the “normal” requirement for a position, if the Department of Labor’s Occupational Outlook Handbook (OOH) indicates that some individuals in the position might have only an Associate’s degree, the position may not be a specialty occupation. The petition should receive an RFE and the petitioner must supply more information to prove that a bachelor’s degree in a specific field is definitively required.
  • Most important, this instruction about the OOH is meant to apply to all kinds of positions — not just those that are computer-related. This explains why so many RFEs are challenging whether a job is indeed a specialty occupation.

Not only are these new “rules” leading to denials and more work for petitioners, they are creating more work for the USCIS and adding to crisis-level processing delays. USCIS used to think of itself as a “service oriented” organization, but now its mission focuses on enforcement and security.

If you have questions about how to strategize to deal with the “new normal” at USCIS, Jackson Lewis attorneys are available to assist you.

 

 

October 1, 2020, is the REAL ID deadline, and most people will not be able to board even a domestic air flight in the U.S. without either a REAL ID-compliant driver’s license or a passport.

Congress passed the REAL ID Act in 2005 based on recommendations from the 9/11 Commission. The Transportation Safety Administration (TSA) appears ready for the roll out — signs are showing up in airports, TSA officials are telling travelers personally about the upcoming deadline, and TSA press secretary, Jenny Burke, said “You’ll see a lot more in the future from us.”

While most states offer REAL ID-compliant driver’s licenses or will soon, not everyone with a driver’s license has one that is REAL ID-compliant, even in compliant states. To determine whether a driver’s license is a “REAL ID,” look for a star in the upper right-hand corner.

States are preparing for a “rush” – some hiring more DMV staffers and extending their hours of operation. The best way to avoid the expected lines and delays is to act sooner rather than later to get a compliant driver’s licenses, especially if you do not have a passport. As of 2018, about 42% of U.S. citizens held passports – a 15% growth rate since 2007.

In addition to REAL ID-compliant driver’s licenses, other forms of acceptable identification include: passport cards, permanent resident cards, border crossing cards, DHS Trusted Traveler cards, federally recognized tribal-issued photo IDs, Canadian provincial driver’s licenses, and USCIS-issued Employment Authorization Cards (EADs). Children under 18 will not need to present identification as long as they are travelling with a companion who has acceptable identification. TSA agents will receive training to deal with special circumstances as necessary, but failure to provide one of the required identification documents could lead to more inspections, delays, and, possibly, the inability to board.

While some question whether TSA will really implement and possibly create chaotic scenes at airports just one month before the November 2020 presidential election, TSA said it is “moving forward as if implementation will occur.”

Jackson Lewis will continue to follow these developments. Travelers should be on the lookout for public service announcements and a publicity splash from TSA.

 

According to Chinese government data, the number of Chinese students studying in the United States rose from fewer than 1 million in 2000 to more than 6 million in 2017. The number of these students who are returning home to China has grown at close to the same rate. In 2000, hardly any returned, but, by 2017, 4.8 million were returning.

Approximately 360,000 Chinese nationals are currently studying in the U.S., with many planning to stay in the U.S., if they can. More Chinese nationals, however, are shunning that route, choosing to return home after studying in the U.S. The “brain drain” for China is starting to reverse. Most of these students are in STEM fields and are known jokingly as “sea turtles.”

Why is this happening? Xinhua, the official Chinese news agency, says that the return flow is because of “the ‘magnetic effect’ of China’s rise as a global power.” Signs of this magnetic effect include:

  • R&D expenditures in China are growing, reflecting financing trends in the U.S. China has become more prosperous with higher living standards.
  • China offers incentives to its nationals to return to China — housing allowances and health care benefits.
  • Despite current conditions, large tech companies are still expanding in China.
  • There is no longer a big caliber gap between the top scientific institutions in China and the U.S. Sea turtles staff many of China’s universities.
  • Sea turtles also staff the financial sector and most Chinese venture capitalists studied in the U.S.

Chinese students also report:

  • They no longer feel welcome in the United States because of immigration restrictions and the long wait times for green cards.
  • They want to be “home” and be better able to maintain family ties.
  • They perceive a “bamboo ceiling” in the U.S. – Chinese graduates are not making it into the C suites. While they represent 27 percent of professions in large tech companies, they are only about 14 percent of executives.
  • It is becoming harder for Chinese nationals to receive U.S. government funding because of increased scrutiny.
  • They fear that OPT may be eliminated and that this “would restrict the smooth flow of students from American schools to American companies. . . .”

Chinese students are not the only ones feeling unwelcome in the U.S. these days. International student enrollment is down at U.S. universities. That threatens not only some U.S. universities, particularly those in the Midwest, but also threatens the U.S. economy in general, which relies on immigrants as a driver of innovation. Despite the Administration’s desires, the “best and brightest” may be choosing to stay home, return home, or take their skills to other, currently more welcoming countries.

The Trump Administration has indicated it wants to establish a merit-based immigration system focusing on bringing more high-skilled workers to the United States. According to one Administration official, the aim is to attract “individuals who provide a cure for cancer or build that first subdivision on Mars.” Yet, it is becoming harder to obtain visas for high-skilled workers, including individuals of “extraordinary ability” who are applying for green cards in the EB-1A category. These days, even the most “extraordinary” of cases are resulting in Requests for Evidence and denials.

In one example, after an RFE, USCIS denied an EB-1 immigrant visa to a premier big-game hunter and guide, Roy Dirk Ludick. Ludick had been working for MRC Energy Company, a.k.a., Matador Resources Company, on a temporary O visa, which, itself, requires “extraordinary ability.” Matador is an oil and gas exploration company that has access to hunting properties in the United States. According to the company, Ludick’s important role involves providing hunting experiences for its “high valued partners, shareholders and stakeholders,” and it caters to non-hunting guests who also participate in excursions, whether to photograph wildlife, fish, or simply to enjoy an authentic outdoor experience. The properties require year-round habitat management, including conservation efforts. Matador hired Ludick on a full-time basis and sponsored him for a green card.

Matador presented evidence that Ludick met at least seven of the 10 regulatory criteria (only three are required) and that Ludick was at the very top of his field and had received national and international acclaim. An RFE was subsequently issued and Matador responded with proof, including:

  • Evidence of Ludick’s 19 years of experience in the field;
  • Proof that Ludick served as Chairman of the Zimbabwe Professional Hunters & Guides Association (ZPHGA), an internationally recognized organization;
  • Evidence that Ludick had been recognized for “Most Outstanding Contribution to the Association and Industry” more than once;
  • Evidence that Ludick had been featured in publications;
  • Evidence that Ludick was selected as Chief Examiner of ZPHGA;
  • Proof of Ludick’s original contributions to the field – raising evaluation standards for game hunters worldwide; and
  • Proof that Ludick’s offered salary was more than twice that offered to most highly experienced hunting guides.

In denying the case, USCIS refuted the evidence and, according to Matador, “‘unilaterally impose[d] novel substantive or evidentiary requirements beyond those set forth’ in the regulations.”

After the denial, Matador took the case to court. The company filed a complaint under the Administrative Procedures Act (APA) in the U.S. District Court for the Northern District of Texas, MRC Energy Company v. USCIS and Ken Cuccinelli, Acting Director, USCIS. Matador is asking the court “to vacate the denial . . . and remand this matter to [the USCIS] with instructions that, within ten days . . . they approve the Form I-140 petition.” The company contends that USCIS was arbitrary and capricious in its denial and, therefore, violated the APA and the INA.

More companies facing what seem to be arbitrary or erroneous denials of nonimmigrant and immigrant visa petitions are seeking redress and winning (or settling) in the U.S. District Courts. The specific circumstances of the case, the employer’s and the employee’s situations all must be assessed in developing a post-denial plan. Jackson Lewis attorneys are available to litigate and to assist in assessing whether litigation is the best strategy.

We will continue to follow the Matador case and provide updates.

 

The Trump Administration has announced that it will not request Temporary Protected Status (TPS) for Bahamian victims of Hurricane Dorian. TPS allows foreign nationals to live and work in the U.S. as conditions in their home countries do not allow them to return safely, or in situations where their home countries simply cannot manage their return. Among the possible reasons set forth by USCIS to support TPS designation is “[a]n environmental disaster (such as earthquake or hurricane), or an epidemic.” The Administration, which has been seeking to restrict or terminate TPS for citizens of other countries, opted not to request TPS in the Dorian aftermath. Bahamians who have the proper documentation will still be able to come to the U.S. temporarily, but without work authorization.

Customs and Border Protection (CBP) is directly involved in Hurricane Dorian rescue efforts.  So far the agency’s Air and Marine Operations (AMO) has airlifted over 80 people, including citizens of the Bahamas and citizens of the U.S., from the ravaged Abaco Island and Grand Bahama to Nassau for medical treatment and shelter.  CBP is also processing evacuees arriving by ship in West Palm Beach, Florida.  On September 7, 2019, they processed the first arrivals — over 1,400 passengers who sailed on the Bahamas Paradise Cruise Line’s Grand Celebration ship.  The ship arrived in the Islands with emergency supplies and returned with passengers – 539 were U.S. citizens or Green Card holders.  CBP quickly processed the evacuees. However, their arrival was slowed because the cruise line had to spend close to a day vetting documentation before leaving for the U.S.

Senators Marko Rubio (R-FL) and Rick Scott (R-FL) have asked President Donald Trump to waive visa requirements for Bahamians seeking shelter in the U.S. – many of whom have close ties to the United States – especially Florida.

Bahamians generally can enter the United States for short term tourism or business without visas if they are travelling on a flight that departs from a U.S. Pre-clearance station in Nassau or Freeport and:

  • Possess a valid passport or Bahamian Travel Document;
  • Have no criminal record nor other legal ineligibility; and
  • Possess a police certificate issued within the prior six months.

In the aftermath of Dorian, many Bahamians no longer have and cannot access the needed documentation.

Then there are Bahamians who are currently in the United States. Senator Scott, who advocated for TPS for Venezuelans, said at a news conference that TPS was not the instant solution but that it was something he would look at once the immediate humanitarian disaster is resolved. The Administration does not tend to favor TPS and has recently been eliminating that protected status for many countries.

The Bahamian community in Florida, which has been in the Miami area since before Miami was incorporated in 1896, is rallying to provide aid and relief to their friends and family on the Islands including working with its representatives to influence the Trump Administration to waive requirements for Bahamians who want to shelter with family in the United States.

There will likely be additional requests for waivers regarding student visas.  Hampton University, an HBCU in Virginia, has invited students from the University of Bahamas to attend classes this fall – tuition free.