Employers will have until February 11, 2019, to create cases in E-Verify for employees hired during (or just prior to) the government shutdown.

Because of the month-long interruption in services, E-Verify anticipates that there will be longer-than-usual processing times and longer-than-usual delays in responses to requests for assistance.

Creating Cases for Employees Hired During (or just before) the Shutdown

  • During the shutdown, employers were still required to complete Form I-9, Employment Eligibility Verifications within three days after the date the employee began working for pay.
  • When entering these cases into E-Verify, use the hire date from the employee’s Form I-9.
  • If the case creation date is in fact more than three days after the date the employee began working for pay, select “Other” in the drop down menu.
  • Enter “E-Verify Not Available” as the specific reason.

Tentative Nonconfirmations (TNCs) Referred Before E-Verify Resumed Operations

  • If an employee notified you of his or her intention to contest a TNC by February 11, 2019, revise the date by which the employee must contact the Social Security Administration (SSA) or DHS.
  • Add 10 federal business days to the date on the “Referral Date Confirmation” notice.
  • Provide the revised notice to the employee by logging into E-Verify, selecting the employee’s case, selecting the “Print Confirmation” button, and then altering the dates on the hard copy.
  • Federal Business Days are Monday through Friday excluding federal holidays.

Federal Contractor Deadlines

  • E-Verify was not available for federal contractor enrollment during the shutdown.
  • DHS guidance is that any calendar day when E-Verify was unavailable during the shutdown should not count toward the federal contractor deadlines.
  • Federal contractors should consult with their contracting officer for more information on how to proceed.

E-Verify also advises:

  • For questions about E-Verify unavailability, email e-verify@dhs.gov
  • For questions about Form I-9, email I-9central@dhs.gov
  • To contact E-Verify by phone, call 888-464-4216, Monday through Friday

If you have questions or concerns about how to proceed, your Jackson Lewis attorney is available to assist.

Just as the end of the month-long government shutdown was announced, USCIS had its own announcement: it will resume premium processing on Monday, January 28, 2019, for all FY 2019 H-1B Cap petitions, including those eligible for the advanced degree exemption (the “master’s cap”).

Form I-907 requests for premium processing will be accepted for pending cap cases, as well as those cap cases where the petitioner is responding to a Request for Evidence (RFE). This is an important development for those who have been waiting since April 2018 to have their cases adjudicated – especially for those who no longer have work authorization.

The temporary suspension of premium processing remains in effect for all other categories of H-1B to which it applied, i.e., all other H-1B petitions filed at the Vermont or California Service Centers.

Premium processing will remain available for those cases that were previously exempted from the temporary suspension:

  • Cap-exempt petitions filed by cap-exempt institutions that are filed exclusively at the California Service Center; and
  • “Continuation of previously approved employment without change with the same employer” petitions filed exclusively at the Nebraska Service Center.

The resumption of premium processing for FY 2019 Cap petitions does not mean that premium processing will be available for FY 2020 petitions.

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

President Donald Trump has announced that the government shutdown is over, for now. He has agreed to sign a short-term spending bill that will re-open the government for three weeks, until February 15, 2019. The bill does not include any wall funding.

The bill is expected to be brought to the Senate floor “immediately.” The President expects Congress to come to a “reasonable agreement” during the three-week interval. If Republicans and Democrats cannot come to an agreement on border security that is acceptable to him, he suggested that he might use his emergency powers.

In the meantime, we are awaiting word from E-Verify about how and when the database will come back online and what the rules will be. The “three-day” rule had been suspended and the time for employees to resolve TNCs had been extended. Announcing the shutdown, USCIS noted that it “would provide additional guidance regarding [the] ‘three-day rule’ and [the] time period to resolve TNCs deadlines once operations resume.”

Since the system has been unavailable for over a month, companies that have continued to hire employees may have stacks of documents to enter into E-Verify. USCIS likely will account for that as it establishes new deadlines.

Jackson Lewis will provide updates as they become available.

While all citizens of 38 (primarily European) visa waiver-eligible nations may enter the U.S. Virgin Islands for up to 90 days using ESTA, and United States citizens may enter most of the Caribbean Community Member States (CARICOM) for tourism or as business visitors without a visa, citizens of CARICOM cannot enter the U.S. Virgin Islands without a visa. There is no reciprocity. To remedy this situation, Stacey Plaskett, the non-voting representative from the U.S. Virgin Islands in the U.S. House of Representatives, has introduced legislation that would create a special U.S. Virgin Islands Visa Waiver Program for CARICOM. The bill would allow CARICOM citizens to enter the U.S. Virgin Islands for tourism or as business visitors for up to 30 days without a visa.

Under the proposed legislation, the Secretary of the Department of Homeland Security would have the discretion to suspend or terminate the new program for specific countries for security reasons or if the privilege was being abused.

There are 15 full members of CARICOM: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Suriname, and Trinidad and Tobago. And there are five associate members: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Turks and Caicos.

There are currently six non-voting delegates in the U.S. House of Representatives. They represent the District of Columbia, Puerto Rico, American Samoa, Guam, Northern Mariana Islands, and the U.S. Virgin Islands. Although they do not have voting privileges, they have other rights and can introduce legislation.

Please contact Jackson Lewis with any questions.

The Department of Commerce has been enjoined by a federal judge from including the citizenship question in the upcoming Census.

The case began on March 26, 2018, when Secretary of Commerce Wilbur L. Ross, Jr., announced that he would reinstate a citizenship question in the Decennial 2020 Census. In 1960, out of a fear that the question would depress the count for already “hard to count” groups, the Census stopped including the citizenship question in the general census.

Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors and a group of NGOs filed suit in the U.S. District Court for the Southern District of New York, challenging the reinstatement of the citizenship question.

After a bench trial, U.S. District Court Judge Jesse M. Furman issued an opinion in New York, et al. v. U.S. Department of Commerce, No. 18-cv-2921 (Jan. 15, 2019), finding that Secretary Ross had violated the Administrative Procedure Act (APA) in certain ways, including: 1) the decision was arbitrary and capricious; 2) the Secretary had failed to notify Congress as required by the APA; and 3) the Secretary’s reason for instituting the question, in order to enforce the Voting Rights Act of 1965, was pretextual (although the Court did not specifically find that the reason was a pretext for discrimination). Judge Furman vacated the Secretary’s decision and enjoined the Department of Commerce from including the citizenship question in the Census unless and until the legal defects are cured.

Judge Furman’s opinion is extensive (277 pages). In the opinion, he detailed the history of the Census, expressed his concern over the government’s strenuous efforts to stop the litigation, and addressed all of the issues presented. He acknowledged the opinion was quite long, but explained that he wants to be sure there is an extensive record given the certainty of an appeal.

We will continue to follow this case as it progresses through the appeal process. The length of this process could in and of itself prevent the citizenship question from being included in the 2020 Census.

Is it possible that the Deferred Action for Childhood Arrivals (DACA) program might be the key to ending the government shutdown? A DACA-for-border-funding compromise that was taken off the table a year ago is again being talked about by some lawmakers. Here is an update on where DACA stands.

On September 5, 2017, then-Attorney General Jeff Sessions announced that DACA would be terminated. This led to multiple lawsuits filed in California, New York, Maryland, D.C., and Texas. Two of the cases resulted in injunctions that are still keeping DACA alive. The Administration has fought to get these cases before the U.S. Supreme Court, but has been denied. Of the five cases, only one, Texas v. Nielsen, is likely to support the termination of DACA, but even that case is being held up as the Court has ordered the government to expand its response to an amended complaint.

In the meantime, Congress had been under pressure to act before the announced DACA-termination date (March 2018). A number of solutions were floated. Measures were suggested that would trade help for the “dreamers” for border wall funding, including a bipartisan plan that provided $25 billion for border security (over a 10-year period), in exchange for DACA protections. But the Trump Administration rejected this plan in January 2018 on the eve of another government shutdown (that lasted for a weekend). Meanwhile, efforts to arrive at a legislative compromise slowed down once the initial injunction that prevented the Administration from terminating DACA was entered in the Regents of the University of California v. DHS. Even though DACA beneficiaries continued to be in limbo, the problem lost its immediacy.

Now, the government shutdown is creating another possible opening and a “DACA for the wall” deal is being floated by the Administration. Jared Kushner, who has been speaking with Congressional Democrats, stressed that any talk about DACA in which he has been engaged has merely been an attempt to “sound out” members of Congress. Members of Congress, including Senator Lindsey Graham (R-SC), have recently suggested various DACA fixes to end the shutdown. Senator Graham, however, noted that these proposals are in the “infant” stage.

We will continue to monitor developments. Please contact a Jackson Lewis attorney with any questions.

 

President Donald Trump surprised the immigration community recently with an encouraging tweet about H-1B visa holders:

H-1B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship.  We want to encourage talented and highly skilled people to pursue career options in the U.S.

While the President has long spoken about focusing on bringing the “best and brightest” to the United States, his Administration’s actions over the past year have made it more difficult for companies and individuals to obtain H-1B visas and have not made H-1B workers feel particularly secure in their statuses.  Among those actions are:

  • DOJ warned employers not to discriminate against U.S. workers in their hiring practices.
  • DHS has stepped up its worksite investigations of companies that hire H-1B workers.
  • USCIS issued guidance making it more difficult to employ H-1B workers at third party worksites.
  • USCIS no longer defers to approvals in prior decisions when a company requests an H-1B extension.
  • There has been a huge uptick in Requests for Evidence and denials of H-1B petitions.
  • There are plans to enshrine new definitions that will make it more difficult to qualify for H-1B status.
  • DHS plans to eliminate the H-4 EAD program that allows spouses of H-1B beneficiaries to work in the United States while they wait in long lines to become green card holders.
  • USCIS has issued policies that make it more likely that students will fall out of status.

We do know that DHS is planning to institute a new program that is likely to favor U.S. advanced degree holders in the H-1B lottery.  We also know that there have been bills introduced (although not passed) that would help to reduce the long backlogs for Indian and Chinese workers who are waiting in line for green cards.  (Of course this move would end up lengthening wait times for workers from other countries that have not been subject to backlogs.)

What could the President have in mind?  Is there substance behind this tweet? Jackson Lewis will continue to follow developments and provide updates.

Although the number of petitions filed has decreased slightly over the past couple of years, the H-1B cap has been reached every year for the last six years. Due to the high demand, businesses must be ready to file their H-1B petitions on April 1, 2019. Thus, it is time to start strategizing and preparing now.

While every year the process is stressful for employers and employees alike, this year promises to be even more so because it is not clear exactly how the program will proceed. The Department of Homeland Security (DHS) has proposed a new process: establishing a free electronic pre-registration and changing the random selection process in a way that likely will benefit U.S. master’s degree holders. While the electronic registration process could be a welcome addition, DHS does not know and has not made any definitive announcement as to whether it can implement the process quickly enough to have it ready for this year’s cap season.

This uncertainty makes it even more important to decide how you will choose to proceed. Many employers and attorneys are taking the conservative approach and preparing “as usual” to file full petitions on April 1. To decide on the best strategy for your company and what actions you should be taking now, please reach out to your Jackson Lewis attorney to discuss the options, challenges, and risks.

USCIS announced that, effective immediately, it is terminating yet another humanitarian parole program. This one is for individuals living in the Commonwealth of Northern Mariana Islands (CNMI). This move will affect, among others:

  • Immediate relatives of U.S. citizens;
  • Certain “stateless” individuals;
  • Immediate relatives of CNMI permanent residents; and
  • Certain in-home foreign worker caregivers of CNMI residents.

This is how the transition will take place:

  • Upon expiration of authorization, USCIS will not renew any CNMI parole.
  • However, to ensure an orderly wind-down, there will be a 180-day transitional period and extension of employment authorization, where applicable, but in no event will parole extend beyond June 29, 2019.
  • Current parolees with requests for extensions of status and work authorization pending will receive letters granting 180 days of transitional parole. These letters will serve as evidence of work authorization.

CNMI, with about 50,000 inhabitants, is a 14-island archipelago in the Pacific, north of Guam, and over 3,000 miles from Honolulu. At the conclusion of World War II, the U.S., pursuant to a U.N. Security Council Resolution, administered the area, which had been under Japanese rule, as a trusteeship. In 1977, the Islands obtained U.S. commonwealth status. In 1986, Article III citizenship was extended to certain residents of CNMI. Then in 2008, the Consolidated Natural Resources Act (CNRA) began extending most U.S. immigration law to CNMI. In 2009, the U.S. began granting humanitarian parole on a case-by-case basis to CNMI inhabitants who found themselves ineligible for other U.S. statuses. This group included spouses, children, and parents of U.S. citizens. In 2011, the current parole program was instituted.

Other recent attempts by the Administration to eliminate humanitarian parole programs, such as DACA and TPS, have been held up by litigation.

Despite the termination of CNMI parole, foreign nationals in H-1B and H-2B nonimmigrant classifications who are admitted to perform labor and services in CNMI (and Guam) will continue to be exempt from the H-1B and H-2B caps.

In November 2018, the Transportation Security Administration (TSA) notified the public of the opportunity to become a certified cargo screening canine!  Qualified explosives detection canine teams and their providers would be able to become registered Certified Cargo Screening Facility-Canines (CCSF-K9) in the TSA’s cargo screening program.

Until that time, only canines specially trained by TSA were available for this function. The idea was to enhance airport security in a cost-efficient manner by expanding the group of canines available to include third-party providers.

Rigorous assessments and background checks are conducted.  The first group of certified third-party canines has started in time for the holidays.  TSA Administrator, David P. Pekoske explained that “[t]he canine program is an integral part of TSA’s layered approach to security.”

Happy Travels, Happy Holidays, and Happy New Year!