USCIS has posted a policy memorandum that will radically change current policy for students and exchange visitors.  The policy makes it much more likely that those in F, M or J status will find themselves accruing unlawful presence and becoming subject to three and ten-year bars to admission.

Under current policy there is a distinction between violating visa status and unlawful presence. Status violations include, among other things, unauthorized employment or participating in activities not authorized by the individual’s visa status.  Unlawful presence accrues when an individual stays in the United States beyond the date granted upon entry.  Unlike those in other nonimmigrant visa statuses, students and exchange visitors generally are not given a specific “end date” when they enter the U.S.  Instead, they are generally admitted for the Duration of Status (D/S), i.e., the length of their programs.  Under current policy, because they are issued no specific end date to their statuses, they cannot start accruing unlawful presence unless USCIS actually makes a formal finding of a violation of status or they are ordered removed, deported or excluded.

Now a simple violation of status (knowing or unknowing) without any formal finding can start the clock for unlawful presence.

According to the memo:

  • As of August 9, 2018, individuals in F,M or J status who have not been maintaining status will start accruing unlawful presence;
  • Individuals who fail to maintain status on or after August 9, 2018 will start accruing unlawful presence on the earliest of:
    • The day after they are no longer pursuing the authorized activity;
    • The day after they engage in unauthorized activity;
    • The day after completing the course of study or program including authorized practical training plus any authorized grace period;
    • The day after their I-94 expires (if one was issued with a date certain); or
    • The day after they are ordered excluded, deported or removed.

USCIS has stated that this new policy aligns with President Trump’s Enhancing Public Safety in the Interior of the United States Executive Order which directs strict enforcement of all immigration laws.  It is also in accord with the Buy American, Hire American Executive Order which restricts immigration in an effort to protect the U.S. workforce.   The Trump Administration has made it clear that it has concerns about students who work in the United States post-graduation on the basis of Optional, STEM or Curricular Practical Training.  For example, in the DHS Spring 2018 Regulatory Agenda, one of the items listed is Practical Training Reform to protect “U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas” and “to reduce fraud and abuse.”

The three- and ten-years bars to re-admission set out in Section 212(a)(9)(B) of the Immigration and Nationality Act (INA) are quite draconian.  Individuals who accrue 180 days, but less than one year of unlawful presence can be barred from returning to the United States for three years.  Those with more than one year of unlawful presence may be barred for ten years.  Waiver of the bars may be possible only in certain circumstances of extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident.

USCIS is accepting comments on the new policy memorandum until June 11, 2018. Jackson Lewis will continue to provide updates regarding enforcement of the proposed policy.

 

In a not unexpected move, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced on May 4, 2018 that Temporary Protected Status would terminate for Honduras on January 5, 2020. This will give the approximately 60,000 Honduran TPS beneficiaries eighteen months to arrange for their departure or seek an alternative lawful immigration status.  The American Immigration Council has noted that these TPS beneficiaries may have as many as 50,000 children who are U.S. citizens.

TPS for Hondurans began in 1999 as a consequence of Hurricane Mitch. Secretary Nielsen noted that “conditions in Honduras that resulted from the hurricane have notably improved . . . [and] Honduras has made substantial progress in post-hurricane recovery and reconstruction.”

Representative Ileana Ros-Lehtinen (R. Fla.), advocating for legislation that would allow immigrants who received TPS prior to 2011 to apply for legal permanent residence, stated: “Sadly, Hondurans are only the latest group of people in my South Florida community losing their TPS status this year following Haitians, Nicaraguans, and Salvadorians. The administration’s wrongheaded decision to rescind TPS for thousands of Hondurans in the United States will impact their lives in a tragic way. The loss of these hardworking people will have a negative impact on our economy, in addition to disrupting so many lives in our community.”

Other advocates for TPS have noted that Honduras is regularly listed as one of the world’s most dangerous countries and that Honduras is not ready to repatriate the TPS beneficiaries due to poverty, political unrest, a recent three-year drought and widespread gang violence.

Those Hondurans currently in TPS status will be able to re-register and extend their EADs until January 5, 2020. Details about this process will be forthcoming in the Federal Register. Hondurans should not submit re-registration applications until after the announcement appears.

Jackson Lewis will provide updates as they become available. We have developed a new tool to help employers determine whether TPS beneficiaries retain work authorization. To use the tool, go to: https://public.campaign.jacksonlewis.com/#content%7Crecord%7CTemporaryProtectedStatus. The tool will be updated regarding Honduras as soon as DHS publishes information about the re-registration process.

Temporary Protected Status (TPS) for 9,000 Nepalis nationals who have been living in the United States since 2015 will terminate as of June 24, 2019.

The Secretary of DHS Kirstjen Neilsen stated, “[T]he disruption of living conditions in Nepal from the April 2015 earthquake and subsequent aftershocks that served as the basis for its TPS designation have decreased to a degree that they should no longer be regarded as substantial, and Nepal can now adequately manage the return of its nationals . . . .” She further explained that TPS is being terminated because the “originating conditions” no longer exist.

Nepal was struck by a 7.8 magnitude earthquake in June 2015. There were a series of significant aftershocks. It was reported that 9,000 people died, 22,000 were injured, and more than 755,000 homes were destroyed.

In March 2018, the Catholic Legal Immigration Network (CLINIC) recommended to DHS another TPS extension for Nepal because the massive infrastructure damage caused by the earthquake had not yet been repaired. CLINIC noted that subsequent natural disasters (floods and landslides) have delayed the recovery, that 15 percent of Nepalis living in Nepal rely on money sent to them by relatives living in the United States in TPS status, and that Nepal was in no position to reabsorb 9,000 nationals at this time.

The termination of TPS for Nepal is just another in the list of countries that have lost protected status during the Trump Administration including Guinea, Sierra Leone, El Salvador, Haiti, Nicaragua, Sudan, and Liberia (Deferred Enforced Departure). A decision about whether to terminate TPS for Honduras is expected in early May. The only countries currently remaining on the list that have not been given termination dates are Somalia, Syria, South Sudan, and Yemen.

Nepali citizens currently in TPS status will be able to re-register and extend their EADs until June 24, 2019. Details about this process and the re-registration period will be published in the Federal Register. Nepalis should not submit re-registration applications until after that announcement appears.

Jackson Lewis will provide updates as they become available. We have developed a new tool to help employers determine whether TPS beneficiaries retain work authorization. To use the tool, go to: https://public.campaign.jacksonlewis.com/#content%7Crecord%7CTemporaryProtectedStatus. The tool will be updated regarding Nepal as soon as the DHS publishes information about the re-registration process.

Proposed changes to Form DS-160 would include aspects of “extreme vetting” in all nonimmigrant visa applications. The public has until May 29, 2018, to submit comments to the Trump Administration proposal.

Visa applicants would be required to submit five years of social media handles on specific platforms and five years of phone numbers and email addresses, information on international travel, and any family history of involvement in terrorism. Diplomatic-type visa applicants would be exempted from this collection.

Critics, raising privacy grounds concerns, note such changes may have a chilling effect on the rights of freedom of speech and association of U.S. citizens as well as foreign-born individuals.

The Administration argues that asking these questions is necessary for national security. The changes are in line with one of President Donald Trump’s early executive orders: Protecting the Nation from Foreign Terrorist Entry into the United States, also known as the Travel Ban Executive Order, and his Presidential Memo on Enhanced Vetting Protocols and Procedures for Visas and Other Immigration Benefits. With that Memo, the President ordered the Secretaries of State and Homeland Security, in consultation with the Attorney General, to “implement protocols and procedures as soon as practicable that in their judgment will enhance the screening and vetting of applications for visas and all other immigration benefits, so as to increase the safety and security of the American people.” The new procedures were to focus, in part, on “ensuring the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.”

Additional security questions were first introduced by then-Secretary of State Rex Tillerson as optional. In cables to the Consulates, Tillerson advised the officers that, at their discretion, they may choose to use additional questions to screen certain populations that might raise security concerns. The DS-5535, Supplemental Questions for Visa Applicants, was introduced for that purpose.

Although the DS-5535 is more detailed, making additional screening questions mandatory for all nonimmigrant visa applicants likely will slow the visa process.

Please contact Jackson Lewis if you have any questions or would like assistance in submitting comments.

After gathering feedback and extensive testing, USCIS has unveiled an updated and modernized E-Verify system to improve the user experience, efficiency, and reduce errors.

Enhanced features include:

  • Expanded helper text and visuals;
  • Real-time feedback on errors;
  • Auto-scroll feature that takes the user to the next section;
  • Streamlined case creation and case closure;
  • Modernization to reduce Tentative Nonconfirmations (TNCs)
  • A personalized “Are You Sure?” alert;
  • Combined DHS and SSA TNCs; and
  • Improved photo-matching features with the option to using photos from mobile devices.

The enhancements can be found on the E-Verify Enhancements April 2018 webpage.

The expansion of E-Verify is an important feature of President Donald Trump’s overall immigration plan. It is one of the changes that he believes would help to eliminate the jobs magnet that brings illegal workers to the United States and ultimately harms U.S. workers. In his proposed budget, Trump requested $23 million to expand E-Verify and make it mandatory nationwide.  The 2018 Omnibus budget, however, simply extended the E-Verify program until the end of the fiscal year.

A better user experience could add to the support for mandatory E-Verify use. In a survey of HR practitioners conducted by SHRM in late 2016, 92 percent would support a mandatory E-Verify system if system problems were addressed, including:

  • Strong safe harbor protection of good faith use of the system;
  • Better photo-matching tools to authenticate identify; and
  • Elimination of the Form I-9.

If you have any questions about the E-Verify enhancements, please reach out to your Jackson Lewis attorney.

The 2016 STEM regulations made it more difficult for staffing agencies and consulting companies to sponsor graduating F-1 OPT employees for the two-year STEM OPT extension. According to the regulations, the training plan must be signed by the entity that has a bona fide employment relationship with the student and the bona fide employer must be in a position to train the student and oversee the implementation of the training plan. It was noted that STEM OPT may not be “apt for certain types of arrangements, including . . . employment through ‘temp’ agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship.”

Now, without highlighting or announcing a change, USCIS on its STEM website has clarified its position on qualifying bona fide employment relationships. It notes that the training experience “must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct site visits to ensure the employer is meeting program requirements.” It continues, “[T]he training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” The guidance also notes that “periodic telephone calls or . . . periodic email messages sent to the employer to describe and discuss their experiences at the place of business or worksite of a client or customer of the employer” would not fulfill the direct training obligation.

These clarifications do not mean that it would not be possible to have a STEM employee working at a third-party worksite. There might be situations where a bona fide employer-employee relationship could still be established if, for instance, a supervisor is co-located at the client site and actively supervising the STEM employee or if the third-party placement is only occasional.

It is unclear whether simple publication on the USCIS website of new guidance has the force of law or whether this new guidance will lead DSOs to reconsider already approved training plans. Further, whether this new policy will lead to particular scrutiny of Cap-H-1B cases filed for STEM OPT students who are working at third-party locations is unclear.

What seems clear is that this is another step taken by USCIS to comply with President Donald Trump’s Buy American, Hire American Executive Order focused on protecting U.S. workers.

Jackson Lewis will continue monitor and provide updates.

The Immigration and Nationality Act provides that any alien convicted of an “aggravated felony” after entering the United States is subject to deportation. The Supreme Court has decided, 5-4, that the statute’s defining an aggravated felony as “a crime of violence” is unconstitutionally vague. Sessions v. Dimaya, No. 15–1498 (Apr. 17, 2018). Justice Neil Gorsuch sided with the liberals on the Court.

According to the INA, an aggravated felony includes “a crime of violence for which the term of imprisonment [is] at least one year.” In a residual clause, a crime of violence is defined as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

James Dimaya, a legal permanent resident, was twice convicted of first degree burglary. The Supreme Court held that the residual clause was too unpredictable and arbitrary and created “grave uncertainty about how to estimate the risk posed by the crime.” The Court, in an opinion by Justice Elena Kagan in which Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Gorsuch joined (at least in part), also stated that a high threshold on vagueness should apply in this case because of the “grave nature of [civil] deportation” versus other civil penalties.

Justice Gorsuch agreed that the statute was unconstitutionally vague. He noted that the law requires fair notice and that this notice requirement “serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution.” He also stated that the legislature may not “‘abdicate their responsibilities for setting the standards of the criminal law’ by leaving judges the power to decide” the issues. Gorsuch did not accept the government’s argument about the power of the executive in these matters as stated by Deputy Solicitor General Edwin Kneedler: “I think it is important for the court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which Congress has vested authority.” He wrote in his concurrence: “To acknowledge that the President has broad authority to act [in the immigration area] supplies no justification for allowing judges to give context an impermissibly vague law.”

Where Gorsuch differed from the majority was that he does not believe in a hierarchy of notice thresholds for different types of cases or that deportation should be singled out. Fair notice is his touchstone throughout.

Dimaya was originally argued before the Supreme Court in 2017 after Justice Antonin Scalia’s death. At that time, the case ended in a 4-4 deadlock. It has been suggested that Justice Scalia would have stood with the liberals on the Court regarding the vagueness analysis in this case, in accordance with his prior opinions.

USCIS received 190,098 H-1B petitions during the first week of April. The cap has been reached every year for the past six years but the total is down from last year’s total of 199,000. The Service conducted its computer-generated random selection process on April 11th.  In line with its usual practice, USCIS conducted the master’s cap lottery first and unselected petitions became part of the regular cap lottery.

USCIS will return all unselected petitions with their filing fees unless the returned petition is a prohibited multiple filing. In that case, the filing fees will not be returned. USCIS will also start the process of sending out receipts for accepted petitions.  Based on previous experience, receipts for cases which made the lottery selection may start to be received in approximately two to three weeks and the mailings will last for a few weeks due to the volume.  Since premium processing of this year’s cap cases was suspended, there will be no emailed receipts.

The H-1B lottery creates a stressful situation for employers and employees alike, perhaps even more pronounced this year. Not only did USCIS suspend premium processing just before the April 1 filing deadline, it also released at the end of March guidance regarding how to determine whether a petition is a “multiple filing” and the standards for third-party worksite H-1Bs. While possibly creating problems for employers who rely on H-1B workers, these announcements further President Trump’s Buy American and Hire American executive order, which directs DHS to protect the interests of U.S. workers and ensure that there is no fraud, abuse, or circumvention of the laws.

USCIS will continue to accept H-1B petitions that are filed for individuals who are not subject to the cap.

 

Chad is no longer on the Travel Ban 3.0 list of restricted countries. President Donald Trump lifted this restriction because “Chad has made improvements and now sufficiently meets the baseline. . . ” The President’s announcement was based on the first of an ongoing set of reports issued on March 30, 2018, by the Secretary of the Department of Homeland Security.  The Secretary is obligated to provide a report every 180 days regarding the countries on the restricted list and any progress those countries are making toward compliance with standards pertaining to identity management practices and information sharing on national security and public threats.

The Secretary’s report noted that Libya had made progress toward compliance but that lifting of the restriction for that country could not be recommended at this time.

Travel Ban 3.0 will also remain in place for Iran, North Korea, Somalia, Syria, Venezuela and Yemen. The Supreme Court has agreed to review Travel Ban 3.0. Until then, the ban, as “amended” by the President, will remain in effect.  Individuals may be eligible for waivers but, to date, few have been issued and the process for obtaining them may be lengthy.

In what appears to be the largest worksite enforcement raid under the current administration, ICE arrested 97 immigrants at a meatpacking plant in Tennessee. Eighty-six of the people apprehended were arrested on immigration charges. According to reports, ICE has detained 54 individuals.

This ICE raid follows the arrest of 21 individuals during a nationwide ICE operation in January targeting 7-Eleven franchises.

The raid at Southeastern Provision in Tennessee was a joint operation involving ICE, the IRS, and the Tennessee Highway Patrol. Federal and state charges against the company include failure to comply with Tennessee’s E-Verify requirements, and the family-run business also is being investigated for tax charges, as well as immigration charges. The investigation began when bank employees reported Southeastern Provision had been making weekly withdrawals of large sums of cash since 2008 ($25 million in total). In a federal affidavit, it is alleged that the company hired undocumented workers, paid them in cash, and made them work in harsh conditions with long hours for which they were not properly compensated.

Company managers have not yet been charged, but it appears that the various agencies involved are executing search warrants to gather evidence. IRS enters into information agreements with federal and state authorities and banks have an obligation to report large cash transactions ($10,000 or more a day) under the Bank Secrecy Act, an anti-money-laundering law.

Religious leaders in the community have been critical of the raid. Bishop Richard Stika said in a statement, “The arrests of workers and undocumented immigrants in East Tennessee this week has placed an unnecessary stress on vulnerable families that have, in many ways, become victims in a much larger story.”

An ICE raid implicates potential civil and criminal charges and, therefore, it is essential to consult with counsel on these matters. Jackson Lewis attorneys are prepared to assist. For an overview of basic considerations in advance of a possible ICE raid, see our article, “When ICE Knocks.”  To discuss legal requirements and strategies related to compliance with stepped up enforcement by ICE, contact a member of the Jackson Lewis Immigration Practice Group.