Although the ongoing government shutdown is rooted in an immigration matter – the “wall” – its effect on other immigration processes is somewhat limited. Fee-funded activities are not affected, which means that USCIS offices will remain open, interviews and appointments will continue as scheduled, and most petitions and applications will continue to be accepted and processed. Because the Department of Labor’s funding has already been appropriated, LCA and PERM cases will not be affected.

The most noticeable effect from a domestic immigration perspective may be that the E-Verify program will not be operational. During shutdown it will not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve E-Verify Tentative Nonconfirmations (TNCs).

To minimize the impact caused by the government shutdown:

  • The “three-day rule” will be suspended; and
  • Time period for resolving TNCs will be extended.

Employers are warned not to take any adverse action against employees while an E-Verify case remains in an interim or limbo status. Please click here for E-Verify’s full announcement regarding the shutdown.

Other programs that will not operate during the shutdown due to lack of continuing funding include:

  • EB-5 Immigrant Investor Regional Center Program
  • Conrad 30 J-1 Program for Physicians
  • Immigrant visas for Non-Minister Religious Workers

For now, it seems that passport services will remain available and U.S. Embassies and Consulates abroad will continue to provide services to U.S. citizens, but other services may be limited. Jackson Lewis will continue to follow these matters and provide updates as they become available.

The Court of Appeals for the D.C. Circuit has added Immigration Voice, a group that represents high-skilled foreign nationals, to defend the H-4 EAD Rule. Save Jobs USA v. United States Department of Homeland Security.

The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the green card process.

Save Jobs, a group of technology workers who allege that they have been displaced by foreign nationals, challenged the H-4 EAD Rule in 2015, soon after the Rule was instituted by the Obama Administration. Originally dismissed, the case made it to the D.C. Circuit in 2016. The Trump Administration changed the dynamics of the case because it aligned with Save Jobs and declined to defend the Rule. Furthermore, the Administration contended that it was planning to rescind the Rule, which would make the case moot. Since March 2017, the government has requested five continuances, asking the Court to hold the case in abeyance while it prepared to rescind the Rule through the rulemaking process. These requests were granted, but the Court, as well as immigrants who would be affected by the rescission of the Rule, have grown tired of the uncertainty and tired of waiting.

Immigration Voice asked to intervene in the case to defend the Rule. On December 17, 2018, the D.C. Circuit Court granted that motion and removed the case from abeyance. New briefs and reply briefs are scheduled to be submitted between January 16, 2019 and March 15, 2019.

In another effort to retain H-4 EADs, Representatives Anna G. Eshoo (D-Cal.) and Zoe Lofren (D-Cal.) introduced a bill that would prevent the Administration from revoking the H-4 EAD Rule. Referring to those who are on H-4 EADs as “American citizens-in-waiting,” Lofgren complained that “[p]rohibiting H-1B dependent spouses from working is of no benefit to our country” and that if the Rule is abolished, “many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration.”

In the meantime, the Administration continues to contend that it is working toward revoking the H-4 EAD Rule. Some have predicted that a move in that direction will be made before the end of 2018. Revocation of H-4 EADs will remove approximately 100,000 of mostly highly skilled workers from the workforce at a time when U.S. employers are struggling to fill technical jobs.

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

ICE has had no official Director since June 2018, when Thomas Homan left the post, but that has not slowed down its worksite and other enforcement activities, according to the agency’s latest fiscal year report (FY 2018 covers October 1, 2017, through September 30, 2018).

Acting Director Ronald D. Vitiello’s nomination has been stalled in Congress at a time when critics are calling ICE a “deportation force” and agitate for its abolition. Homan, who called for a quadrupling of worksite enforcement, stated before leaving his post that ICE was simply enforcing federal laws, not operating on some rogue agenda.

ICE reported that worksite investigations surged in FY 2018 by “300 to 750 percent” over FY 2017. In 2018, Homeland Security Investigations (HSI), one of ICE’s three operational directorates, “opened 6,848 worksite investigations compared to 1,691 in FY 17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively . . . .”  Although criminal indictments and convictions have not yet risen, the numbers are expected to increase as the investigations that have been initiated develop.

ICE was created in 2003 by a merger of the investigative and interior enforcement elements of the former U.S. Customs Service and the Immigration and Naturalization Service. With a $6-billion budget and more than 20,000 law enforcement and support personnel, ICE does quite a bit more than deport individuals. Among other things, it conducts transnational investigations into smuggling, financial crimes, cybercrimes, exploitation of children, weapons smuggling, trade crimes, narcotics smuggling, identity theft, human rights violations, counter-terrorism, and visa security. It also upholds U.S. immigration law against those who present a danger to U.S. national security, are a threat to public safety, or undermine U.S. immigration laws. It is the Trump Administration’s focus on individuals who allegedly undermine U.S. immigration laws that has led to an exponential increase in worksite enforcement.

There have been many high-profile enforcement actions at meatpacking and agricultural firms, franchises, manufacturing companies, and businesses in sanctuary jurisdictions. ICE reported that in FY 2018, companies had to pay more than $10.2 million in judicial fines, forfeitures, and restitutions and that it levied a similar amount in civil fines. HSI encourages compliance by issuing civil fines in connection with I-9 audits and then, depending upon its audit findings, uses criminal prosecution against employers who knowingly break the law. HSI believes its stepped up enforcement efforts protect U.S. workers, reduce illegal migration, and eliminate any competitive advantage that those who hire illegal workers may enjoy.

If you have any questions about how to prepare in the wake of increased enforcement, reach out to your Jackson Lewis attorney.

Social Security Administration (SSA) has begun notifying employers that the information reported on an individual employee’s W-2 form does not match the SSA’s records with “Request for Employer Information” letters, known as “No-Match” letters.

SSA started sending these controversial informational requests in 1993, but the practice has waxed and waned in part due to litigation. In 2011, SSA resumed the practice of notifying employers of social security number mismatches. But in 2012, the Obama Administration decided to simply stop the practice.

Now, the letters are back! In July 2018, probably in response to President Donald Trump’s Buy American, Hire American Executive Order, SSA re-started the practice by sending “informational notifications” to employers and third party providers telling them of mismatches on their 2017 Forms W-2 and explaining where to find helpful resources. The plan was to send 225,000 of these notices every two weeks. Starting in Spring 2019, notices will be sent regarding 2018 Forms W-2s, but these letters, unlike the “informational” letters, will tell employers that corrections are necessary.

A mismatch does not necessarily mean that there is any wrongdoing. It can be caused by an administrative error: numbers can be reversed, names might be misspelled or changed, for instance, due to marriage. But once a letter is received, in determining how to respond, employers find themselves caught between agencies. SSA wants to maintain accurate records of earnings. ICE wants to ensure compliance with employment verification laws. And the Immigrant and Employee Rights Section of the Department of Justice (IER) wants to ensure that employers are not discriminating on the basis of citizenship, nationality or by pursuing unfair documentary practices in violation of the INA.

What is an employer to do?

  1. Don’t take any adverse action against an employee based on a No-Match letter alone.
  2. Compare the SSA information with the individual’s employment records.
  3. If the employer’s records match, ask the employee to check the name and number on his or her Social Security card.
  4. If there is a mistake on the card or the card needs to be changed or corrected, ask the employee to reach out to SSA to resolve the issue.

If the issue is not easily resolved, the employer should contact legal counsel. There are no “safe harbors.” Each case is different and must be analyzed individually to avoid missteps and penalties from either SSA, ICE, or IER.

USCIS has released a policy memorandum clarifying the “one continuous year out of three years” L-1 requirement refers to the time before the individual’s filing.

Eligibility for L-1 status requires the following:

  • The U.S. company has a parent, subsidiary, affiliate, or branch abroad (“qualifying organization”)
  • The U.S. company is or will be doing business in the U.S. and at least one other country through a qualifying organization during the employment of the individual in L-1 status
  • The employee is seeking admission to provide service in an executive, managerial, or specialized knowledge capacity
  • The employee has worked for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the U.S. in an executive, managerial, or specialized knowledge capacity

This clears up a conflict between the statute and regulations on whether the one-year requirement must be met before seeking admission to the U.S. or before filing the L-1 petition. The statute states, “an alien who, within 3 years preceding the time of his application for admission to the United States, has been employed continuously for one year . . . .” (INA Sec. 101(a)(15)(L)) This is echoed in part of the regulations at 8 CFR Sec. 214.2(l)(1)(ii)(A). However, both 8 CFR 214.2(l)(3)(iii) and 8 CFR 214.2(l)(3)(v)(B) state that the employment abroad must have occurred prior to the filing of the petition. Because of this, there has been inconsistency in approvals of petitions where the one year of employment abroad was met prior to admission to the U.S., but not necessarily prior to the filing of the L-1 petition.

The new policy also makes clear that any time spent in the U.S., while it will not break the continuous employment period, will be subtracted from the one-year requirement. This is a change in policy from precedent for the one year being met with 5 months of training in the U.S. and 7 months of employment abroad. Matter of Continental Grain Co., 14 I&N Dec. 140 (DD 1972).

The new policy memo makes it more difficult to accumulate that one year of continuous employment if the individual has been in the U.S. working for a different company before applying for an L visa or was in a status that was not sponsored by the U.S. petitioner.

The policy memo states:

  1. The usual reference point for determining the one year in three years requirement is the date the petitioner files the initial L-1 petition, not the date of admission.
  2. Time spent in the U.S. working for a qualifying organization in another employment-based nonimmigrant status results in an adjustment of the reference point back to initial date of entry in the other status. For example, if the person worked as an E-2 for the petitioner or a qualifying organization in the U.S. and filed the I-129 L-1 petition, the 3-year period would be the period prior to admission in E-2. Time spent working in the U.S. for an unassociated company does not adjust the reference point. Periods spent in the U.S. working for the qualifying organization but as a dependent or student or any status that is not sponsored by a qualifying organization does not result in an adjustment of the reference point. For example, if the person and her spouse worked for the organization abroad and the spouse was transferred as an E-2 but the person worked as an E-2 dependent, the person working as the E-2 would have the time period adjusted for a future L-1 petition, but the E-2 dependent would not.
  3. If the beneficiary takes a break in employment with, or stops working for, the qualifying organization for more than two years during the three years preceding the petition filing, then he or she cannot meet the one-year requirement. This would bar individuals who have worked for the company within the past three years – just not for the past two years.
  4. Although the continuity requirement is not broken by brief trips to the U.S. for business or pleasure, the one-year foreign employment requirement is satisfied only by the time a beneficiary spends physically outside of the U.S. working full-time. Individuals considering applying for L-1 status must track all time spent in the U.S.

USCIS has noted that these changes will ensure a real continuity of employment for individuals who are being transferred to the U.S. in L-1 status. These changes also will decrease the number of workers who may qualify as L-1 transferees.

If you have questions about how this new policy might affect your employees or your company’s strategies, please reach out to your Jackson Lewis attorney.

 

The 60-day comment period for the Administration’s new “public charge” rule just closed. There is currently no definition for “public charge” in the rule, but a public charge is understood to be an alien who depends on the government for subsistence, as demonstrated by the receipt of cash assistance for income maintenance or institutionalization for long-term care at the government’s expense. An example of public benefit having this effect is receiving Medicaid while at a nursing home.

The proposed rule actually aims to define public charge and to expand the public benefits that would render an alien a public charge. But even before public comments have been reviewed, the effects of the changes are apparent and controversial. The City of Baltimore is the first to file a lawsuit contesting the new delineation.  Baltimore is not challenging the proposed rule itself, since it has not yet been finalized. It is instead challenging changes that already have been made in the State Department’s Foreign Affairs Manual (“FAM”). These are the instructions that Consular officials use at Consulates and Embassies abroad when granting non-immigrant visas and immigrant visas, the latter of which is also known as “green cards.” Baltimore has requested the FAM changes be rescinded as being “arbitrary and capricious, procedurally infirm, and unconstitutional.”

Immigrant rights advocates have noted that under the revised FAM instructions, which go so far as to assess a sponsor’s use of public benefits, it may be more difficult for potential immigrants to overcome a public charge determination. Baltimore alleges that “the change in the State Department’s manual, along with [President Donald] Trump’s rhetoric, has already affected the city’s immigrant community” and that immigrants have been “chilled” from applying for benefits. The City notes particularly that in “the past few months, enrollment in Head Start early education programs by African immigrants has ‘virtually ceased.’” Indeed, a study presented at the American Public Health Association’s 2018 Annual Meeting and Expo showed that since Trump’s initial announcement on changes in the public charge determination, participation in the federal Supplemental Nutrition Assistance Program (SNAP, formerly known as “food stamps”) has declined by about 10% among immigrants who have been in the U.S. for less than five years.

California community clinics and agencies serving children reportedly are noticing that since the new rule was announced, immigrant parents are taking their children out of health and nutrition programs or not enrolling them at all out of fear that participation could affect their immigration status. In addition, physicians in Illinois have reported that immigrant parents are afraid to enroll in government-sponsored health insurance programs for their children for fear of jeopardizing their own status. The proposed new rule states that the use of benefits by U.S. citizen children of immigrants should not be held against the parents. But immigrant parents are afraid and confused about how that would play out. Immigrant advocates believe the new rule will end up costing the U.S. taxpayer more because the refusal of treatment and services ultimately means preventable problems will turn into larger health problems that will require more costly treatments.

New York Governor Andrew Cuomo has threatened to sue the Trump Administration if the new public charge rule is finalized primarily on account of the negative impact on health care. Other cities and states may join Baltimore in its current litigation. Meanwhile, 100 business executives have submitted a public comment highlighting the wide-ranging effect on the growth of their businesses. Dave Gilboa, CEO of Warby Parker, told the Wall Street Journal that “[i]mposing these excessive and nonsensical boundaries on individuals seeking temporary visas and green cards would drastically narrow the opportunity for brilliant talent to come to the U.S.”

Jackson Lewis will continue to follow and provide updates on the effects of the new FAM instructions, the Baltimore case, and the progress of the proposed rule.

The Department of Homeland Security has published a much-anticipated notice of proposed rulemaking affecting the H-1B visa process. Public comments must be submitted by January 2, 2019.

DHS proposes:

  • Adding a free electronic pre-registration process; and
  • Changing the random selection process in a way that would likely benefit holders of U.S. master’s degrees.

The pre-registration process would involve the following:

  • USCIS would provide 30 days’ notice on its website of the opening of the pre-registration period
  • Pre-registration would begin no later than 14 days before April 1 of each year
  • Basic information would be required for pre-registration, including the job title, the beneficiary’s name and citizenship, and whether the beneficiary has a U.S. master’s or higher degree
  • After the random selection process takes place, notices of selection will be sent out
  • Selection notices will indicate the filing location and the filing period
  • There will be at least a 60-day post-notification filing period
  • Pre-registrations will be maintained until all available H-1B visas are used and, if necessary, the pre-registration process may be reopened
  • Unselected pre-registrations will not carry over to the next fiscal year

With the “Buy American, Hire American” Executive Order, President Donald Trump made it clear that he would like to see “the best and brightest” come to the U.S. through the H-1B process. To this end, DHS proposes to invert the current random selection process through rulemaking, without eliminating random selection altogether. According to DHS, the outcome will be an estimated 16% increase in beneficiaries accepted with a U.S. master’s (or higher) degree. This would make it more difficult for companies to hire individuals into positions that only require a bachelor’s degree.

How will this work?

Instead of first conducting the U.S. master’s degree lottery and then adding any remaining U.S. master’s degree beneficiaries into the “regular” lottery, DHS will:

  • First conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included,
  • Then put the remaining U.S. master’s degree beneficiaries into a lottery for the separate 20,000 U.S. master’s degree allocation

The proposed rule notes that the pre-registration process and the change in the random selection process are severable. In other words, even if DHS does not have sufficient time to institute pre-registration for the upcoming cap season, it still may change the selection process.

Jackson Lewis attorneys are available to help you strategize about how to prepare for possible changes. We will continue to provide updates as they become available.

As President Donald Trump talks about ending birthright citizenship with an executive order, the Irish public is talking about restoring birthright citizenship.

Ireland ended the right to birthright citizenship in 2004 with a referendum. A proposed law would give anyone born in Ireland the right to Irish citizenship with one requirement – the individual must reside in Ireland for at least three years after birth. A recent opinion poll shows 71 percent public support in Ireland for the proposed law. Approximately 30 countries (out of close to 200), primarily in North America and South America, recognize birthright citizenship with no additional eligibility requirements.

Despite public support, the Irish government opposes the new law. People living in Northern Ireland (part of the United Kingdom) are entitled to both UK and Irish citizenship. The government fears that individuals living illegally in the UK would move to Northern Ireland, have children, and then parlay their children’s citizenship into obtaining residency in Ireland or even other EU countries post-Brexit. In other words, like Trump, the Irish government appears to fear the pull of “chain migration.”

In the U.S., birthright citizenship is based on an interpretation of the 14th Amendment to the Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Generally, this has been interpreted as a whole-hearted endorsement of birthright citizenship, and birthright citizenship has taken the status of a fundamental tenet in the United States. Some Republican members of Congress, however, following Trump’s lead, have questioned whether birthright citizenship applies to everyone under the Constitution. Senator Lindsay Graham (R-S.C.) is talking about introducing legislation that would limit birthright citizenship to the children of U.S. citizens and legal permanent residents. The argument for the constitutionality of such legislation is that the words “subject to the jurisdiction” in the 14th Amendment actually limit birthright citizenship.

The legislation that Graham is considering has little chance of passage at this time. But, if it were to succeed, it would shut down the so-called “birth tourism” industry in the U.S. Birth tourists are women who come to the U.S. for a “vacation” to give birth to children who will automatically receive the benefits of U.S. citizenship. Coming to the U.S. to have a child is not prohibited by law. Although some women coming to U.S. for this purpose find themselves in the hands of con-artists and scammers in less than ideal situations, many others can afford good medical care and luxurious accommodations.

A potentially significant bill eliminating the per-country caps on employment-based visas may become law.

H.R. 392, Fairness for High-Skilled Immigrants Act, first introduced in 2017, had 300 co-sponsors. It is now championed by outgoing Representative Kevin Yoder (R-Kan.) as an amendment to the spending package that Congress likely will pass this year.

The bill means to equalize wait times and eliminate the green card backlog mainly for Indian foreign nationals and, to a lesser extent, Chinese nationals, in about a decade. At the same time, of course, wait times for petitioners and applicants from almost all other countries would increase.

How Would This Be Implemented?

If the amendment passes, most immigrant visas would be allocated to those from India and China until an equilibrium is reached. Recognizing that shutting out everyone else would not be feasible, the bill sets out a three-year transition period during which a certain percentage of immigrant visas would be reserved for those who are not from India or China: 15% in the first year, 10% in the second year, and 10% in the third year. Assuming that the annual number of employment-based immigrant visas remains the same (140,000), the projected average wait time eventually will even out at approximately seven years.

What Does This Mean?

If the bill passes, it will change the settled expectations of many foreign nationals and the companies that employ them. Examples include the following:

  • What has been common for Indian and Chinese foreign nationals will apply to most employment-based green card applicants. Almost anyone who wants to apply for an employment-based green card will have to be in H-1B status to remain in the country, working while waiting for a green card. This likely will put even more pressure on the H-1B lottery system.
  • Individuals from countries other than India and China who are not eligible for H-1Bs (such as some L-1B employees) may no longer be able to remain in the United States long enough to get green cards.
  • While the elimination of the backlog would be good for technology companies that employ many Indian foreign nationals, other industries may suffer.
  • The healthcare industry, for example, is concerned because foreign nurses have to get green cards to work since they are not eligible for H-1B status. Hospitals have relied on the fact that most of the foreign nurses are from countries not subject to long backlogs. The same concern may apply regarding foreign physicians who can be locked out by the H-1B lottery.
  • Others, such as the National Iranian American Counsel, oppose the bill because without green cards, Iranian nationals will continue to be subject to President Donald Trump’s travel ban.
  • Recruiting and retaining foreign nationals from countries other than India and China might be harder.

Jackson Lewis will continue to report any new developments. If you have questions about how these changes will affect your workforce or your overall immigration strategy, please reach out to your Jackson Lewis attorney.

Although there have been discussions for some time that the Trump Administration would change the rules regarding Optional Practical Training (OPT), OPT did not show up in the most recent “regulatory agenda.”

Nevertheless, the Administration has been putting limits on F-1 students in other ways. Those changes, at least in part, are responsible for a decline in foreign student enrollment at U.S. institutions.  Examples include:

Recent reports reveal that USCIS is denying change of status to H-1B petitions to students who have used more than 12 months of practical training – counting both Curricular Practical Training (CPT) and OPT. Students with these denials would have to leave the U.S. and apply for their H-1B visas abroad. Although this can be quite an inconvenience, the real fear is that the Consulate will decide that the student had accumulated “unlawful presence” (without even realizing it) while working in OPT status and thus become subject to one of the bars on admission.

It is not yet clear what the Department of State will do, but as the Cap H-1B season approaches, it is important to consider all of the possible risks. Jackson Lewis will continue to provide updates as they become available. If you have questions about how to strategize around these risks for students in OPT status, please reach out to your Jackson Lewis attorney.