DHS has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

  • Full name
  • Date of birth
  • Country of birth
  • Gender
  • Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order,  DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

Jackson Lewis attorneys will follow these developments and provide updates as they become available.

Customs and Border Protection (CBP) cancelled an incoming Harvard freshman’s visa and deported him back to Lebanon eight hours after arriving at Boston’s Logan International Airport to start his college career. CBP detained the incoming student along with several other international students who were ultimately admitted to the U.S. According to reports, CBP deemed Ismail Ajjawi inadmissible to the U.S. after examining his cell phone and computer. CBP officers allegedly discovered “people posting political points of view that oppose the U.S. on [Ajjawi’s] friend list.” Ajjawi responded that none of the posts were made by him and that he “didn’t like, [s]hare or comment on them . . . and shouldn’t be held responsible for what others post.”

Earlier in the summer, Harvard President Lawrence Bacow wrote an open letter to Secretary of State Michael Pompeo and Acting Secretary of Homeland Security Kevin McAleenan expressing concerns about the problems international students and scholars have encountered and the effect on Harvard’s academic programs. “Students report difficulties getting initial visas — from delays to denials,” Bacow wrote in July. International students and scholars, he wrote at the time, “are not just participants in the life of the university; they are essential to it.” Bacow also has advocated for undocumented immigrants, including Harvard’s “Dreamer” population, and for staff members who are TPS recipients. Since the introduction of President Donald Trump’s original Travel Ban, many universities have challenged and expressed their concern about the “impediments put in the path of our international students, faculty, and staff.” The universities believe that these impediments have led to a decline in applications from international students and that this will weaken the institutions and, “by extension, our country’s competitiveness.”

Since 2017, the Administration has focused on realigning immigration policies that affect students particularly. Its activities include the following:

As for Ismail Ajjawi, in a statement to CNN, CBP said it “can confirm that on Monday, September 2, Ismail Ajjawi overcame all grounds of inadmissibility and was admitted into the United States as a student on a F1 visa.” The agency did not provide details on how the case was resolved.

 

 

On your next international trip, you may see facial recognition technology in use.  The Transportation Security Administration (TSA) started piloting this technology in late 2018.  Now, in conjunction with various airlines, the use of facial recognition technology is growing and at some airports it is being used  for everything from identifying passengers at gates to full “biometric terminals” where you only need your face to check in, check baggage, traverse security and board the plane.  Even if they see the cameras in use, however, U.S. citizens may opt out because these programs are currently voluntary for them.

Airlines believe that facial recognition technology will make life simpler for passengers who will not have to juggle identification documents along with carry-on bags and other travel accoutrements as they move through the airport.  It will also make boarding airplanes up to 10% faster, not to mention that the use of this technology will be cost effective for the airlines.  One photo taken at the gate will be matched against a Customs and Border Protection (CBP) gallery of photos of others on the same flight.  According to CBP, the system is more accurate than a human can be and works 97% of the time – although some suggest that the accuracy rate is a bit lower than that.  The photos in the “gallery” come only from public sources such as passport and visa photographs and the photos taken at the gate are apparently only stored for 12 to 24 hours.

Raising privacy concerns, the U.S. House of Representatives has questioned TSA and FBI use of facial recognition technology.  At hearings, lawmakers have criticized the FBI for not meeting the standards set by the Government Accountability Office (GAO) for testing and auditing privacy protocols and for the  accuracy of the data.  Critics also have concerns about TSA’s standards.  Representative Mark Meadows (R-N.C.) called for TSA to pause its pilot program.  Representative Elijah Cummings (D-MD) stated:  “American citizens are being placed in jeopardy as a result of a system that is not ready for prime time.”  Despite some expressions of skepticism, there has been no official request to stop the TSA program.

Biometric technology has been used for checking foreign nationals who enter the U.S. for some time.  In a 2017 Executive Order, President Trump sought to expedite the process of completing a biometric entry and exit system including the use of facial recognition technology.

It may still take some time before facial recognition cameras appear at your local airport, but get ready to smile for the camera (if you like)!

North Carolina Governor Roy Cooper (D) has joined the “sanctuary city” debate.  He vetoed House Bill 370, “An Act to Require Compliance with Immigration Detainers and Administrative Warrants,” on August 21, 2019.

Some county sheriffs in North Carolina have been refusing to uphold ICE detainers or coordinate with ICE regarding individuals in custody.  They argue that it is their job to enforce and comply with applicable state and federal laws, not to enforce immigration laws.  This led ICE spokesman, Bryan Cox, to remark that “as a direct result of this policy, persons [in the affected counties] will see an increased presence of ICE.”  In other words, without the sheriffs’ cooperation, ICE will conduct more enforcement actions in local neighborhoods and at work sites.  This is not an empty threat.  Since 2017, sanctuary jurisdictions have been targeted for ICE raids, “shame and blame” report listings and threats of withholding federal DOJ grants.

In response to the sheriffs’ actions, North Carolina lawmakers passed House Bill 370.  Under the bill:

  • Confinement facilities would have to comply with all federal detainers and administrative warrants;
  • Sheriffs could be removed from office for non-compliance;
  • Confinement facilities would have to submit annual reports regarding compliance with ICE detainers; and
  • Those in charge of confinement facilities would need to investigate the legal status of any person in their custody charged with a criminal offense and query ICE if they are unable to determine the individual’s legal status.

Governor Cooper, in his veto message, stated:

“This legislation is simply about scoring political points and using fear to divide North Carolina.  As the former top law enforcement of our state (Cooper is the former four-term Attorney General of the state), I know that current law allows the state to jail and prosecute dangerous criminals regardless of immigration status.  This bill, in addition to being unconstitutional, weakens law enforcement in North Carolina by mandating sheriffs to do the job of federal agents, using local resources that could hurt their ability to protect counties.”

President Donald Trump reacted to the veto in a tweet:

“North Carolina Governor Cooper Vetoed a Bill that would have required Sheriffs to cooperate with ICE.  This is a terrible decision for the great people of North Carolina.  He should reverse his decision and get back to the basics of fighting crime!”

To date, at least seven states including California, Illinois, Massachusetts, New York, Pennsylvania, Washington and Texas have been involved in legislation and litigation over sanctuary policies.  With House Bill 370 and Governor Cooper’s veto, North Carolina now joins that company.  Both Governor Cooper and President Trump will be on the ballot seeking re-election to their respective offices in 2020.

 

The I-9, Employment Eligibility Verification Form, that employers have been using since July 2017 is set to expire on August 31, 2019. Until USCIS makes any additional announcements on I-9 Central, employers should plan to continue to use the current form.

In preparation for the form’s expiration, USCIS initiated a 60-day comment period on its plan to extend the Form I-9 without making any changes in March 2019. Twenty-one comments were received. Since the Form I-9 has so many traps for the unwary, requests for some changes and clarifications were to be expected. In light of the comments received, USCIS decided to extend the comment period for an additional 30 days until July 6, 2019.

It has been reported that if the new comments are extensive, USCIS will likely just extend the use of the current Form I-9 until decisions can be made about any possible changes to the form itself or the M-274, Handbook for Employers.

Jackson Lewis attorneys will continue to monitor the process and provide an update as soon as one becomes available.

ICE raids generally are the results of months (or even years) of investigation by Homeland Security Investigations (HSI). Before a “raid” is conducted, a search warrant must be issued. To obtain a search warrant, HSI must show that facts establish probable cause to believe that there are violations of federal law, i.e., the company is willfully and unlawfully employing illegal aliens.

How does HSI gather the evidence it needs for the search warrant? Based primarily upon search warrant applications, here are some of what the agency does:

  • HSI may employ confidential informants. These could be undocumented workers who have been arrested, and are subject to deportation, but will gather information for HSI in exchange for some benefit – such as a work permit. Confidential informants may wear wires and record audio and video evidence.
  • Employ confidential informants who are U.S. citizens or others who have been involved in the employment verification process and who agree to provide information in exchange for immunity.
  • Receive information from its tip line – these may even come from disgruntled employees.
  • Question undocumented workers who are arrested away from the worksite about their employment and pay stubs to gather evidence of illegal employment.
  • Undocumented aliens who are arrested and put into the Alternatives to Detention (ATD) program often are tracked using ankle bracelets or other GPS, telephonic devices, or SmartLink devices. Individuals in this program do not have work authorization. HSI may follow these aliens electronically and can determine if they are spending hours at a time at a specific worksite.
  • Review state wage reports, compare those against law enforcement databases, and identify theft victims to see whether employees are using a stolen identity.
  • Review E-Verify tentative non-confirmation notices (TNCs) to see if they have been resolved or it may simply request E-Verify Query Extracts. Comparing the E-Verify Query Extracts to quarterly wage reports, ICE can determine if all new employees were run through the E-Verify system.
  • Collaborate with other federal agencies such as the IRS, to review company tax filings, or the Social Security Administration, to review No-Match letters.

The raid is not the end of the investigation. HSI uses the information it gathers, including reviewing company records and interviewing arrested workers, to continue its investigation. HSI also may continue to monitor the same worksite for possible new violations.

An ICE raid implicates potential civil and criminal charges for employers. It is therefore essential to consult with counsel on these matters. For further information about how to prepare for a possible raid, please reach out to a Jackson Lewis attorney. For a brief overview of some basic things to consider, please click here.

 

 

The uptick in ICE investigations has Oregon requiring employers to notify employees of any upcoming investigation by a federal agency (such as a Form I-9 inspection) for records, forms, or other documentation used to verify employee identify and work authorization. Oregon follows California in taking this step.

Under Oregon’s statute, SB 370 (2019), employers must, within three business days of receiving a notice of any inspection:

  • Post the notice in a conspicuous and accessible location, in English and in the language the employer typically uses to communicate with the employees; and
  • Make reasonable attempts to individually distribute notifications to employees in the employees’ preferred language.

The notice must include:

  • Copy of the notice of inspection;
  • Date of the inspection;
  • Scope of the inspection (if the employer has that information); and
  • Telephone number of the Portland Immigrant Rights Coalition’s hotline so that employees can get information from an advocacy group regarding immigrant and refugee workers’ rights.

The Oregon Bureau of Labor and Industries (BOLI) has created a template notice in English, Korean, Russian, Spanish, and Vietnamese that meets these requirements. BOLI also created a Frequently Asked Questions (FAQs) document.

According to the FAQs, a “reasonable attempt” to provide individualized notice depends upon the circumstances. What is clear is that the purpose is to ensure that all employees see the notice in a timely fashion. Examples of modes of communication include, for example, email, paystubs (if they are going out within the three-day period), text messages with the documents attached, or a message to employees asking them to pick up the notice in the office. BOLI also clarified that the “individual distribution” is not solely for employees whose preferred language is not English – it is for all employees.

Under the Oregon statute, there is no penalty for failure to provide the notice. In California, on the other hand, employers may be liable for penalties of up to $5,000 for a first violation and up to $10,000 for subsequent violations.

Oregon enacted this legislation to give employees a “heads up” so they could prepare for any consequences that may result from the inspection.

Jackson Lewis attorneys are available to assist you in establishing a protocol to meet this new requirement and determining how to implement adequate notice.

Having focused on enforcement and illegal immigration, the Trump Administration has recently turned to legal immigration.  The new Public Charge rule which will go into effect on October 15, 2019, absent court action, will make it harder for some foreign nationals to obtain green cards or even to secure or extend temporary non-immigrant status.  What has been something that primarily affected family-based immigration may now affect some employers and their employees as well.  Any workers with a family of four and an income of less than $64,000 (or 250% of the federal poverty guidelines) could be subject to the Public Charge Rule.

The Public Charge rule was always meant to limit the admission or immigration of individuals who were not basically self-sufficient.  Until recently, the rule was interpreted to cover individuals who accepted cash welfare benefits.  But now the rule will also include those who use (or might use) food stamps, government-subsidized housing vouchers and subsidized medical insurance — if they use any of the covered benefits for 12 aggregate months or more during any 3-year period.  While any determination by USCIS or the Department of State at Consulates and Embassies abroad will still be based upon a consideration of the “totality of the circumstances,” the Public Charge rule likely will be more central to the discretionary decision-making process.   The rule will not apply in all circumstances.  There are exceptions.  For instance, the rule will not be applied to U.S. citizens  or penalize receipt of benefits by U.S. citizens — even if the U.S. citizen is related to the applicant for immigration benefits.  And, among other exceptions, the rule will not apply to refugees or pregnant women for up to 60 days after giving birth.

The new public charge rule has been widely criticized.  Lawsuits challenging the rule are expected.  Seventeen state attorneys general have argued that DHS “failed to estimate the true costs” of the regulation.  DHS itself stated in its discussion regarding the new rule that “[w]hile some commenters provided support for the rule, the vast majority of commenters opposed the rule.”  There is reportedly fear among immigrants about the impact of the rule. Since the mention of changes in the Public Charge rule, immigrants have been afraid to apply for benefits they need – even benefits for their U.S. citizen children.

With the attempt to add a citizenship question to the census, the ICE raid on poultry processing plants in Mississippi,  and now the announcement of the new Public Charge rule, the Trump Administration has in a short time made headway on one of President Donald Trump’s key campaign issues — protecting U.S. workers by limiting and chilling certain types of immigration to the United States.  Among the Administration’s priorities is limiting or eliminating “immigration magnets” such as government assistance and the related possibility of employment.

The new rule is over 800 pages long and complex.  If you have questions about how this could affect your workforce, your Jackson Lewis attorney is available to assist.

Employers have paid about $7 billion in H-1B fees over the past 10 years. Now, a new fee is coming – the electronic registration fee.

Electronic pre-registration for the H-1B lottery is set to begin for the 2020 cap season. The government’s idea is that conducting the lottery based upon pre-registrations (rather than complete filings) will be more efficient for USCIS and less costly for employers who will not have to file complete petitions unless their cases are selected in the lottery. Initially, DHS decided not to impose a fee for pre-registration, but it left the door open.

During the comment period for the new H-1B rule, some immigration watchdog groups expressed concern that employers, particularly large users of H-1B visas, could “game the system” if a fee were not imposed. Contrarily, business organizations were concerned that high registration fees might hurt small employers. DHS replied that it would be taking steps “to prevent speculative or frivolous registrations.” Ultimately, DHS decided to impose a fee. That proposal has cleared the Office of Management and Budget review. The next step will be publication in the Federal Register, however, the amount of the fee has yet to be revealed.

We will update you with the fee information when it is available.

The House Judiciary Committee Subcommittee on Immigration and Citizenship asked the Department of Homeland Security to account for the delays in immigration processing at a hearing on July 16, 2019.

Representative Zoe Lofgren (D-Cal.), who chaired the hearing, wanted an explanation for the 2.4 million application/petition backlog, as well as processing delays that have reached crisis levels. Processing times have increased 46 percent over the past two years and 91 percent since 2014. Delays of a year or more are far from unheard of.

The DHS officials explained to Congress that the delays were partly caused by unanticipated spikes in demand that led to erroneous staffing forecasts. USCIS was adding staff as quickly as possible, shifting workloads to accommodate demand, and leveraging technology, among other things, to relieve the backlogs.

A week later, it was reported that USCIS staff had been asked to volunteer to assist Immigration and Customs Enforcement (ICE) with enforcement activities. Since USCIS had just reported that it needed more staff to handle the processing of immigration benefits, some members of Congress were concerned that USCIS staff might actually be shifted to another agency – especially because more delays could mean that businesses and the economy will suffer.

Although USCIS and ICE are agencies within the DHS, their roles are very different. USCIS offers customer service – determining eligibility and granting immigration benefits. ICE handles enforcement – determining whether individuals are complying with all immigration laws and regulations and making arrests when necessary.

In a letter to Kevin McAleenan, Acting Secretary of DHS, and Ken Cuccinelli, Acting Director of USCIS, ten members of Congress asked for clarification. First and foremost, they wanted to know if an email had been sent by management to USCIS staff asking for volunteers to assist with administrative duties at ICE field offices. The representatives also wanted to know:

  • If so, which agency came up with the idea – ICE or USCIS?
  • To whom was the email sent?
  • How many USCIS staff volunteered to help with the enforcement efforts?
  • Was counsel consulted before making the request?
  • Did anyone evaluate the effect on USCIS processing times?

As of this writing, the representatives have not received a response.

Please contact a Jackson Lewis attorney with any questions.