If you haven’t visited our California Workplace Law Blog, please see this recent post which touches on limitations on practices for verifying employment eligibility, as well as related protections for workers.  It is co-authored by one of our immigration attorneys, Brian Schield.

The Trump Administration’s targeting of outsourcing and staffing firms that use H-1B non-immigrant visas has been a hot topic over the past year and promises to be an area of continued focus in the near future.  Please see our full publication on that topic here.

New restrictions on visas for citizens of China are expected as soon as June 11, 2018, according to the Associated Press. These restrictions, the report states, would target students in high-tech fields such as robotics and aviation.

The changes would be part of the Trump Administration’s national security strategy to protect American’s intellectual property and prevent espionage. Reports of such changes have been in the air for several months. As early as December 2017, the Administration released the “National Security Strategy of the United States of America.” This report stated:

“The United States will review visa procedures to reduce economic theft by non-traditional intelligence collectors. We will consider restrictions on foreign STEM students from designated countries to ensure that intellectual property is not transferred to our competitors, while acknowledging the importance of recruiting the most advanced technical workforce to the United States.”

In line with these general principles, Chinese students in priority fields now may be limited to one-year visas and other Chinese citizens may require special clearances from various government agencies if they work for businesses that are on the Commerce Department’s “higher scrutiny” list.

The United States already restricts access to certain technologies through security clearances and export controls. For instance, individuals from “suspect” countries who work on technologies with potential military and security applications (“dual use technologies”) may have to be under the umbrella of an export license. Export licenses are governed by a complex body of regulations from the Commerce and State Departments and employer certifications regarding export licenses appear on certain immigration forms, including H and L visa petitions. The Administration may be considering broadening these regulations as they relate to China. In the meantime, visa applicants who work with dual use technologies are already subject to additional scrutiny, screenings, and delays through special administrative processing procedures known as Security Advisory Opinions (SAOs).

Universities are particularly concerned about how new restrictions may affect and, in some cases, even cripple collaborative projects that benefit from international cooperation with Chinese researchers. They also are concerned about how restrictions will affect their ability to attract promising Chinese students, particularly graduate students. While the United States has been a magnet for researchers and students, especially in technical fields, other options and other countries such as Canada appear poised to take advantage of any new restrictions.

Jackson Lewis will provide updates on the new restrictions as they become available.

On May 29, 2018, DHS published a proposed rule to remove the International Entrepreneur Parole Program (IER). This was hardly unexpected.

Since January 25, 2017, when President Donald Trump issued the Border Security and Immigration Enforcement Improvements executive order, it has been clear that the Administration would seek to eliminate the IER as being an inappropriate use of DHS parole authority. In July 2017, DHS attempted to delay the effective date of the rule until March 14, 2018, while it developed its proposal to eliminate the rule. On December 1, 2017, the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke ruled that DHS would have to continue to accept IER applications. To date, DHS has received 13 applications and none of the applicants have been granted parole.

DHS has justified the removal of the IER on several grounds:

  • Parole authority is not appropriate for implementing a complicated program for entrepreneurs and business start-ups that would be best implemented by Congress;
  • Entrepreneurs should use existing legislative vehicles such as the E-2, E-5, or National Interest Waiver programs to the extent possible; and
  • DHS should not use its limited resources to implement a policy does not support Trump’s chief objective of protecting U.S. workers.

Despite the fact that no IER applications have been approved, DHS has proposed various options for the termination of the program. Its preferred option is to simply end parole on the effective date of the final rule. There are also proposed provisions for those who have pending applications. These individuals may withdraw their applications and have their fees returned or leave their applications in place and argue that they are entitled to discretionary parole even without the IER.

Elimination of the IER was set out in the DHS’ Spring 2018 Regulatory Agenda, which also included:

  • Establishing electronic registration for the Cap H-1B program;
  • Changing the focus of the H-1B program to the “best and brightest” and protecting the interests of U.S. workers;
  • Eliminating H-4 EADs;
  • Updating the USCIS fee schedule;
  • Modernizing the EB-5 Immigrant Investor Program;
  • Reforming Practical Training programs for students; and
  • Mandating more electronic filings.

Eliminating H-4 EADs is next up. That proposed new rule is expected in June 2018, followed by the Cap H-1B electronic registration rule in July 2018.

Please contact a Jackson Lewis attorney if you have any questions about this and other developments.

 

The U.S. Court of Appeals for the D.C. Circuit, at the government’s request, has been holding a case on the viability of H-4 EADs in abeyance for about six months. The government said it planned to make significant revisions to its proposal to eliminate H-4 EADs. In its Spring 2018 Regulatory Agenda, DHS announced the expected date of publication for its proposal to rescind the ability of certain H-4 spouses to obtain EADs is June 2018 – less than one month away.

The government’s proposal for winding down the H-4 EAD program is expected to address the following questions:

  • Will those with H-4 EADs be allowed to continue to renew their work authorization or not?
  • Will initial applications and applications for renewal for H-4 EADs be accepted until a date certain?
  • Will there simply be a date when all H-4 EADs will no longer be valid?

There are approximately 100,000 spouses of H-1B workers employed on H-4 EADs. These spouses, mostly women, are often highly skilled workers who simply are unable to obtain one of the limited number of H-1B visas available annually. They are also entrepreneurs building businesses and creating jobs in the United States. Taking away their ability to work will affect not only their families’ finances, but also U.S. companies’ ability to compete for the “best and the brightest” internationally.

Given the uncertainty, eligible applicants should apply for and, if possible, renew H-4 EADs expeditiously.

Moreover, individuals with H-4 EADs should be exploring possible alternatives.

If the H-4 EAD holder has a sponsor company, consider the following:

  • Is an O Visa for individuals of extraordinary ability a possibility?
  • Is the individual from one of the countries with treaty-based work authorization similar to H-1Bs such as Canada, Mexico, Singapore, Chile, and Australia?
  • Is the individual employed by or could be employed by a college or university or other affiliated institution that is not subject to the H-1B cap or even employed concurrently by an exempt organization?
  • Could the individual be employed in L status by the parent, subsidiary, or affiliate of a company that he or she worked for within three years of coming to the U.S.?

If the H-4 EAD holder does not have a sponsor company, consider the following:

  • Could the individual apply for a self-sponsored Green Card such as an EB-1A (for individuals of extraordinary ability) or an EB-2 National Interest Waiver (for individuals with advanced degrees or exceptional ability working in a field that serves the national interest of the U.S.)?
  • Could the individual return to school in a program that would provide work authorization in the form of CPT or later OPT?
  • Could the individual apply for a Green Card under the EB-5 Immigrant Investor Program?

Determining whether it is feasible for an individual to obtain any one of the above statuses requires a fact-based legal assessment. If you wish to discuss options and possibilities, please reach out to your Jackson Lewis attorney. We will monitor and provide updates regarding the new rule.

It has been reported that the Trump administration is working toward limiting the number of TN visas. Based on the precepts of the Buy American, Hire American executive order, U.S. Trade Representative Robert Lighthizer has made reducing the TN program part of the renegotiation of NAFTA. The Administration reportedly wants to limit the number of professions eligible for the TN classification and possibly cap the number of visa renewals available. On the other hand, Canada and Mexico, whose citizens are eligible for TN visa status if they qualify under the NAFTA professions list, would like to expand the number of eligible professions to bring it more in line with current technology demands.

In 2016, Congress passed legislation that bars an administration from changing visa numbers during trade negotiations. It may be possible to avoid that bar, however, by simply modifying the operable treaty, rather than negotiating a new treaty. Of course, any new version of NAFTA would have to be ratified by Congress. There are those in Congress in favor of a reduction in NAFTA visas. Senator Charles Grassley (R-IA), in an October 2017 letter to Lighthizer , wrote “[t]his uncapped and under-recognized pool of high skill employees exacerbates the risk to American workers already present in certain industries that rely too heavily on foreign workers. It also constrains the U. S. Government’s total discretion over our immigration laws. . .” Although statistics regarding the number of Canadians in the U.S. in TN status are not readily available, Grassley believes that the overall number of TN visa status holders in the U.S. is approaching 100,000. Differing from Grassley’s view, legislators such as Representative Zoe Lofgren (D-CA), who represents Silicon Valley, emphasize the need for the “best and brightest,” and do not want to reduce the number of visas available.

Speaker Paul Ryan hoped to ratify a revised NAFTA during this legislative session but because negotiations are still in progress, it will likely have to wait until next year.

Even without treaty changes, we have already seen that TN applications are more highly scrutinized. Certain categories, such as economists, are subject to new guidelines, individuals’ credentials are being questioned, and even individuals who already hold approved TN visas and TN classification may be denied renewals.

Given the current uncertainty, employers may want to consider whether there are any alternative visa options for employees currently in TN status. If you have any questions about possible options, please reach out to your Jackson Lewis attorney. We will continue to follow the NAFTA negotiations and provide updates as they become available.

ICE announced its enforcements investigations in the last seven months have already doubled last year’s total.

Since October 2017, ICE’s Homeland Security Investigations (HSI) opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. Thomas Homan, Acting Director of ICE, predicted in October 2017 that ICE would quadruple worksite enforcement investigations. Now, Derek Benner, head of the ICE HSI unit reported to AP that “another nationwide wave of audits planned this summer would push the total ‘well-over’ 5,000 by September 30.”

The stated purpose of these investigations is to create a “culture of compliance and accountability,” protect jobs for U.S. workers, eliminate “unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

The result has been the largest numbers of arrests and the highest penalties assessed in enforcement actions. In January, ICE agents served I-9 audits on 98 7-Eleven stores across 17 states, interviewed employees and managers, and arrested 21 workers. In April, at Southeastern Provision in Tennessee, ICE and the IRS arrested 86 individuals and executed search warrants to gather evidence regarding the company’s compliance.

In FY 2017, such actions against businesses netted $97 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines.

Investigations most often start with a notice of inspection alerting employers that ICE is going to audit their employment records for compliance with existing law. Companies then have three days to produce I-9 records. If employers are found not to be in compliance, civil penalties will be assessed. This can lead to criminal prosecutions. Unauthorized employees who are not legally in the U.S. may be detained and, ultimately, deported. I-9 audits can turn into criminal investigations, however, if certain factors exist.

ICE sees worksite inspections as “one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.” Given the government’s focus, preparing for possible inspections by auditing your employment verification processes and records is an essential precaution. If you have questions or concerns about how to proceed, please reach out to your Jackson Lewis attorney.

 

USCIS and the Department of Justice are teaming up and collaborating to “better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” They have entered into a Memorandum of Understanding (MOU) that will increase their ability to share information about cases and training and make referrals.

Last October, the Department of State and the Employee Rights (IER) Section of the Civil Rights Division entered into a similar partnership to “share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas such as H-1B, H-2A and H-2B.”

Just recently, one of the largest enforcement actions undertaken by the current administration, a raid at a meatpacking plant in Tennessee, resulted at least in part from an information sharing agreement between the IRS and banking institutions.

The pattern is clear. As part of President Donald Trump’s Buy American, Hire American Executive Order, the agencies responsible for granting immigration benefits and enforcing immigration laws are working together “to ensure the integrity of employment-based immigration programs and improve [their] ability to detect and prevent fraud” and protect the U.S. workforce.

The expansion of information sharing likely will lead to even more investigations, audits, and worksite visits. If you have any questions about how best to prepare, please reach out to your Jackson Lewis attorney.

 

DACA was set to terminate on March 5, 2018, based on President Donald Trump’s September 2017 announcement. To avoid the termination, the President challenged Congress to negotiate a legislative solution for the Dreamers. Negotiations ensued, but so did litigation and the issuance of an injunction. A federal court ordered DHS to continue to accept DACA renewal applications and, eventually, the March 5th deadline passed. The U.S. Court of Appeals for the Ninth Circuit likely will be the next court to issue a ruling. Following that, the case likely will be taken up by the U.S. Supreme Court.

In the meantime, although DACA beneficiaries still have a “window of opportunity” during which they can apply to renew DACA status, the future is unclear. Legislation could offer a permanent solution, but pending bills have been blocked and not been passed in either the House or the Senate.

To find a more permanent solution for the Dreamers, Representative Carlos Curbelo (R-Fla.) is heading up the charge to force a vote on the House floor by way of a discharge petition. With a discharge petition, it is possible to bypass the Speaker of the House and bring a bill to the floor. It requires a simple majority of 218 votes and, assuming all House Democrats sign on, Curbelo would need an additional 25 House Republicans – as of May 15, 18 Republicans and one Democrat have signed. Assuming the discharge petition gathers the necessary support, the House would take up four bills using the obscure “Queen of the Hill” rule. Under that rule, the bill with the most votes, or a plurality, would pass.

The bills offered for consideration would include one bill selected by Speaker Paul Ryan (R-Wis.) along with:

The Securing America’s Future Act, sponsored by Representative Bob Goodlatte (R-Va.), which:

  • Creates a three-year renewable legal status for DACA beneficiaries
  • Ends “chain migration”
  • Ends the Diversity Lottery
  • Increases the number of Green Cards for skilled workers
  • Creates a new agricultural guest worker program
  • Strengthens border security

The DREAM (Development, Relief and Education for Alien Minors) Act, sponsored in the Senate by Senators Lindsey Graham (R-S.C.), Dick Durbin (D-Ill.), Jeff Flake (R-Ariz.) and Chuck Schumer (D-N.Y.), which:

  • Allows DACA recipients and other Dreamers to apply for Green Cards
  • Creates a path to citizenship
  • Improves college affordability

The USA (Uniting and Security America) Act, sponsored by Representatives Will Hurd (R-Tex.) and Pete Aguilar (D-Cal.) in the House, which:

  • Offers a permanent legislative fix for DACA beneficiaries
  • Institute smarter border security measures

Under the Queen of the Hill rule, House members may vote for more than one bill, but only the bill with the most votes would pass.

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

 

USCIS has exceeded its authority in issuing additional requirements on H-1B petitions involving third-party worksites, a suit filed in New Jersey seeking a temporary restraining order alleges.

Just before the 2019 H-1B filing deadline, USCIS issued a memorandum clarifying that petitioners who send employees to third-party worksites must provide significantly more evidence to show that a bona fide employment relationship exists between the employee and the H-1B petitioner. Among other things, this evidence may need to include: documentation of specific work assignments, copies of contractual agreements, itineraries, and detailed work statements covering the entire duration of the H-1B term of employment.

The new memo is aligned with President Donald Trump’s Buy American, Hire American Executive Order and is aimed at protecting U.S. workers. The Administration believes that abuses of the H-1B program, such as not paying the required wage or having workers do “non-specialty occupation” work that harm the U.S. workforce, are more likely to occur at third-party worksite.

The new requirements clearly place additional burdens on any H-1B employers who subcontract high-skilled employees.

Several small technology staffing companies along with a trade organization, the Small and Medium Enterprise Consortium, seeing this a threat to their business models, filed suit in New Jersey federal court seeking a temporary restraining order (TRO) to stop USCIS from enforcing the new memo.

The plaintiffs argue that the new policies go beyond the statutory authority granted to USCIS and that the memo, therefore, violates the Administrative Procedures Act (APA). The plaintiffs have suggested that rather than focusing on who is “bona fide employee,” USCIS should focus on who is an “employer” under the H-1B program. The plaintiffs also have argued that as a matter of public policy, the H-1B visa program was originally designed to ease the critical shortage of technology workers in the United States.

In support of the TRO, the plaintiffs state that the requirements in the policy memorandum will in many cases not be possible to meet, and that the denial of H-1B petitions on this basis will ultimately result in plaintiffs suffering “irreparable harm to [their] reputation and [their] ability to compete” as U.S. jobs will be sent offshore to providers abroad. USCIS has declined comment on the lawsuit.

These accusations may not be speculative. There have been reports of denials of H-1B extensions on the basis of the new policy memorandum. We will continue to monitor and report developments. Please contact a Jackson Lewis attorney with any questions.