Deferred Enforced Departure (DED) for Liberians, a humanitarian relief program similar to TPS (Temporary Protected Status), will terminate on March 31, 2019 according to a formal memo released by President Donald Trump. Liberian DED was set to expire on March 31, 2018. President Trump announced that there will be twelve-month wind down period to ease the transition for as many as several thousand Liberians – many of whom have been in the United States for close to twenty years.

The DED program for Liberians was initiated by President Bill Clinton in 1999 and has been renewed in one form or another by Presidents George W. Bush and Barack Obama – until now. Prior to the announcement, approximately 50 bipartisan members of Congress asked the President to extend the DED program for at least three years to allow Liberia to strengthen its infrastructure and stabilize following two ruinous civil wars and the Ebola outbreak. But President Trump responded in his memo that “Liberia is no longer experiencing armed conflict and has made significant progress in restoring stability and democratic governance.”

President Trump’s decision to terminate the program is similar to the decisions he has recently made regarding DACA and TPS for individuals from Haiti, El Salvador and Nicaragua, among others. As with DACA, the President again noted that “[o]nly Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status for those currently protected by DED who have lived and worked in the United States for many years.”

USCIS will automatically extend employment authorization documents for six months until September 30, 2018, for current Liberian DED beneficiaries who have EADs expiring on March 31, 2018. To obtain work authorization for the final six months, beneficiaries will have to apply for employment authorization. Updates on how to apply will be published in the Federal Register likely within the week.

If you have questions about verification of work authorization for Liberian beneficiaries of DED, please reach out to your Jackson Lewis attorney.

 

 

 

According to CBP personnel, a pilot program is being developed that would eliminate “instant” border adjudications of L-1 NAFTA applications. The pilot program is expected to be introduced at the Blaine, Washington port of entry.  At this time, processes and procedures are still under review and consideration but it appears that the current CBP border application process (with a post-adjudication notification to USCIS) would be replaced by a process that would continue to permit submission to CBP at the border (as the regulations mandate), but would require that USCIS first approve the L-1 petition in what is hoped would be a quick turnaround.

The pilot program could begin as early as April 30, 2018, but we await a formal announcement about the program and its future implications. Jackson Lewis will provide updates as they become available.

Since 2011, government processing of green card applications has taken longer and longer. Concerns expressed by lawmakers, immigration advocates, and the public prompted Senator and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs Claire McCaskill (D-MO) in late-2016 to ask the Office of Inspector General (OIG) of the DHS to review these green card processing timelines. USCIS, the agency with oversight for reviewing green card applications, aims to adjudicate green card applications within 120 days. That goal was not being met.

The OIG’s March 2018 report found:

  • The information about green card processing times on the USCIS website was unclear and unhelpful to applicants—especially because the “Processing Cases As of Date” was not the receipt date of the application (although most applicants would have assumed that); and
  • USCIS was far from meeting its 120-day goal (the average processing time was at least 240 days), and the 120-day goal was unrealistic.

The OIG recommended that USCIS:

  • Change the way it presents information on its website to more clearly reflect wait times; and
  • Determine a more realistic processing goal.

USCIS concurred with the OIG, responding that it is hampered in meeting the 120-day goal by, among other things:

  • Lack of experienced staff;
  • Lack of funding for more overtime;
  • The time it takes external agencies to process security and background checks; and
  • The time necessary to thoroughly vet applicants, including the issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).

Further, USCIS said it:

  • Is testing a new method of determining processing times;
  • Will work toward posting processing time information within 1-2 weeks, rather than 6 weeks;
  • Is working on redesigning its webpages to give applicants a clearer understanding of the true processing times; and
  • Will conduct an analysis of processing times and respond with new goals by the end of 2018.

Some of the things that USCIS is already doing to address the problems:

  • Released the new Form I-485, Application to Register Permanent Residence or Adjust Status, which it hopes will help eliminate some the RFEs that were slowing down the adjudication process; and
  • Launched a pilot project to introduce new processing times to the website.

The pilot program is testing the following four forms using a new automated methodology for calculating processing times:

  • N-400, Application for Naturalization;
  • I-90, Application to Replace Permanent Resident Card;
  • I-485, Application to Register Permanent Residence or Adjust Status; and
  • I-751, Petition to Remove Conditions on Residence.

In the pilot program, the processing times are displayed based upon the actual receipt dates of the applications. The low end of the range shows the time it takes to complete 50 percent of the cases and the high end is the time it takes to complete 93 percent of the cases. Applicants will be able to make “outside of normal processing time” requests for any case that is beyond the 93 percent mark, USCIS said.

During this pilot phase, USCIS will seek further feedback.

Further to President Donald Trump’s Buy American and Hire American executive order, which directs the DHS to protect the interests of U.S. workers and make sure that there is no fraud, abuse, or circumvention of the laws, USCIS has issued a new policy memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”

The guidance clarifies its position on employees who are employed at “third-party” worksites. Previous guidance on this topic had been misinterpreted and misapplied, USCIS said, and the guidance supersedes and/or supplements earlier guidance.

USCIS recognizes that as vendors and subcontractors become involved in the employment relationship, it becomes “more difficult to assess” the bona fides of the case. Therefore, to maintain the integrity of the program, USCIS requires petitioners to show, by a preponderance of evidence, that beneficiaries who will work at third-party locations will be employed in a specialty occupation throughout the requested period and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the period.

To do this, more evidence will be required than before. In addition, that evidence must be specific and corroborated, including:

  • Evidence of actual work assignments (i.e., technical documentation, cost-benefit analyses, brochures, and funding documents);
  • Copies of contractual agreements between all parties involved in the assignment;
  • Itineraries with the specific dates and locations of the services to be provided, along with location contact information; and
  • Copies of detailed statements of work signed by the end-user client detailing the specialized duties, the qualifications, the duration of the assignment, and the hours to be worked, and a detailed description of who will supervise the beneficiary.

The more attenuated the relationship between the petitioner and the end-user client, the more important it is for the petitioner to trace how it will maintain the employer-employee relationship.

When it comes to extensions, the guidance makes clear that there will be no deference to prior adjudications. When filing an extension, the petitioner will have to provide evidence that the above requirements were met for the “entire prior approval period,” as well as for the upcoming period.

Gathering the necessary information for a third-party location H-1B petition can be challenging, especially because the petitioner may have to obtain specific documentation from the end-user client. If you have any questions about how to proceed with such a petition, please reach out to your Jackson Lewis attorney.

 

The omnibus spending bill has been passed and signed by President Donald Trump in time to avoid a government shutdown. From an immigration perspective, here is what is “in” and what is “out” for the rest of the 2018 fiscal year.

In:

  • $1.6 billion in funding for southern border fencing (but not the $25 billion requested by the President for “the wall”);
  • Funding for 328 additional CBP officers;
  • Sanctuary cities were not defunded, so funding is in;
  • Reauthorization of EB-5 Regional Center Program, E-Verify, the Non-ministerial Special Immigration Religious Worker Program, and the Conrad State 30 J-1 Waiver for physicians; and
  • H-2B visa relief
    • Secretary of DHS has the discretion to raise the number of visas available for the fiscal year to 129,547 (from 66,000)
    • Employers may use private wage surveys
    • The 10-month work season is still in
    • Flexibility for the seafood industry to stagger the entry of workers is still in

Out:

  • DACA is not mentioned and is left in limbo;
  • ICE must cut its detention beds; and
  • The dairy industry lost the suspension of the “seasonal requirement” for H-2A visas.

At the last moment, Trump threatened to veto the bill because it did not include the wall funding and did not address the “dreamer” issue. During his signing announcement, the President expressed his unhappiness with the bill, but ultimately said he signed it as a matter of national security and to take care of the military.

Called on to speak about the bill, DHS Secretary Kirstjen Nielsen added that it was “unfortunate that Congress chose not to listen to the security on the front lines” about the wall. She also noted she will continue to work with Congress to “fund the department and give it the tools and resources it needs to execute the mission the American people have asked us to do.”

Despite its prior announcement, USCIS has just notified the public that the E-Verify enhancements will be postponed.  Accordingly the system will remain in operation through this weekend and until further notice and all regular timelines will remain in force.

Jackson Lewis will continue to provide updates as they become available.

The H-2B visa shortage continues, impacting thousands of U.S. businesses around the country. H-2B visas are used widely in hospitality and tourism, landscaping and the construction industry to hire foreign workers for temporary nonagricultural work.  There are 66,000 available annually – half for the winter season and half for the summer season.

The first step to obtain an H-2B visa is to file a labor certification with the Department of Labor.   In the first day of the year, the DOL received requests for labor certifications that would have represented 88,000 workers – well beyond the statutory quota and the resources of the DOL.  As a result, the DOL held any approved labor certifications until February 20, 2018. This created a wave of H-2B applications to USCIS on February 22 and February 23.  On February 28, 2018, without any prior announcement, the USCIS conducted a random lottery to select the petitions that would be adjudicated. The next day, the USCIS announced it had received enough petitions to fill the 33,000 spots for the upcoming summer season.  This has left tens of thousands of jobs unfilled and U.S. companies scrambling to find a solution.

Representative William R. Keating (D-MA) who represents Cape Cod and has long advocated for increasing the number of H-2B visas available seemed frustrated by this last minute decision. “You can’t schedule inventory, hire local personnel, or market a business based on a last-minute lottery. . . .Thousands of businesses across the country will not be able to fully operate without H-2B worker assistance.”

In 2017, in response to requests and lobbying efforts from businesses that need seasonal workers, Congress gave then-Secretary of the Department of Homeland Security John Kelly authority to release more visas. Kelly held off but at the last moment released an additional 15,000 visas.  This year, as Congress negotiates in another effort to avoid a government shutdown, attempts are being made to amend the omnibus spending bill to increase the number of H-2B visas.

Senators Tim Kaine (D-Va.) and Thom Tillis (R-N.C.) are advocating to increase the H-2B visa numbers from 66,000 to 90,000 while Representative Andy Harris (R.-Md.) would like to raise the cap to 120,000. Moves of this sort seem to be supported by House Speaker Paul Ryan (R-Wisc.) and, if included in the omnibus spending bill, could increase the numbers available for this year and possibly beyond.  Senator Chuck Grassley (R-Iowa) is interested in adding an exemption from the cap for workers who are involved in disaster relief work in states that have suffered from major disasters this past year.

The March 23 budget deadline is practically upon us and a shutdown may be imminent. There are a number of issues beyond the H-2B visa program that are holding things up including two other immigration issues:  border wall funding and DACA.

Jackson Lewis will continue to provide updates regarding Congressional action.

USCIS has once again announced the temporary suspension of the Premium Processing service for all cap-subject H-1B cases, including “Master’s Cap” cases.

The suspension is expected to last until September 10, 2018, but USCIS will notify the public before lifting the suspension.  Unlike last year, at least for now, USCIS will continue to accept premium processing requests for H-1B petitions that are not cap-subject including cases filed by cap-exempt institutions.

Any Form I-907 filed with a cap-subject case will be rejected. If the case is submitted with one check covering both the Form I-129 and the Form I-907, both forms will be rejected.  Once premium processing is resumed, petitioners will be able to interfile a Form I-907.

According to the USCIS, the purpose of the suspension is to:

  • Process long-pending petitions; and
  • Prioritize H-1B extension of status filings that are nearing the 240-day mark.

USCIS noted that petitioners still may request expedited processing (without an additional fee) if they can provide documentary evidence that at least one of the following expedite criteria is met:

  • Severe economic loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Non-profit organization whose request is in furtherance of the cultural and social interests of the U.S.;
  • Department of Defense or national interest situation (these particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government);
  • USCIS error; or
  • Compelling interest of USCIS.

Expedited processing is a case-by-case determination and purely at the agency’s discretion. A grant of expedited processing is rare.

If you have any questions about your upcoming H-1B filing, please contact your Jackson Lewis attorney.

As we recently noted, the Washington Post reported that USCIS was creating an employee oversight division to monitor staff who might be perceived as too lenient in their adjudications of requested immigration benefits. USCIS has now specifically denied that claim: “Contrary to recent news reporting, USCIS is not creating an oversight division to monitor employees perceived as too lenient with adjudicating immigration benefit requests. These reports are absolutely false . . .”

We will continue to monitor any developments as to the creation of such an agency.

Some E-Verify timeframes will be suspended temporarily, USCIS has announced. E-Verify services will be unavailable from midnight March 23 (Friday) to 8:00 a.m. March 26 (Monday) due to system upgrades. The agency has provided a Fact Sheet on E-Verify requirements and other issues during the outage.

During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify Tentative Non-confirmations (TNC) with the DHS or the Social Security Administration.

According to the USCIS Fact Sheet, to minimize the impact on employers:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the suspension;
  • If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create the E-Verify case;
  • The time for employees to resolve TNCs will be extended by two federal working days;
  • DHS and SSA will not be able to assist employees with case resolution issues from March 23 to March 26 and employees will have an additional two federal working days from the date listed on their Referral Date Confirmation to contact the agencies;
  • Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension; and
  • Federal contractors with Federal Acquisition Regulation (FAR) E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

Employers are reminded that the E-Verify outage does not change any Form I-9 requirements. Form I-9s must be completed no later than three business days after employment.

If you have questions about the suspension, please contact your Jackson Lewis attorney.