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.

The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.

Establishing this division follows changes Cissna recently made to the USCIS mission statement. That revised statement emphasizes ensuring that benefits are not provided to those who do not qualify, moving away from prioritizing customer (i.e., applicant) satisfaction.

A USCIS spokesman said the agency has no official announcement to make regarding any reorganization at this time, but did not deny such a division is being considered. Jackson Lewis will continue to monitor developments.

The Trump Administration has announced the upcoming termination of Temporary Protected Status (TPS) for El Salvador, Haiti, Nicaragua and Sudan and the temporary extension of TPS status for Honduras, Nepal, Somalia, South Sudan, Syria and Yemen. With each termination or extension, the Administration also publishes information on how the effected TPS beneficiaries may extend their statuses until the end of the termination or extension period.  For El Salvador and Haiti the relevant re-registration period ends on March 19, 2018.  Employers of thousands of TPS beneficiaries must determine whether their employees still have work authorization.  Some TPS beneficiaries are granted automatic extensions of work authorization for up to 180 days while they await the adjudication of their new EAD cards but eligibility for those extensions varies from country to country.

Jackson Lewis has created a tool to help you determine the work authorization eligibility for each affected country. To use it, please click here. If you have any questions about how to use the tool or about next steps regarding Form I-9 employment verification, please reach out to your Jackson Lewis attorney or email.

News outlet Reuters has reported that during the first month of Travel Ban 3.0, 8,400 individuals from Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen, and Venezuela applied for visas, while only an estimated 100 waivers were granted.

Individuals from Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen, and Venezuela are affected by Travel Ban 3.0. Certain individuals are exempt from the travel restrictions, including those with valid entry documents, U.S. legal permanent residents, and dual nationals.

Concerned, Senators Chris Van Hollen (D-MD) and Jeff Flake (R-AZ) requested information from the State Department regarding the waiver process following information received reporting “the near uniform denial of waivers of visas.” In response, the State Department outlined its waiver process.

If an exemption does not apply to the traveler, a Consular Officer must consider the following to determine whether a waiver might be appropriate in order to grant entry to the U.S.:

  • Is there undue hardship?
    • An unusual situation exists that compels immediate travel, and delay would defeat the purpose of the travel.
  • Is there a national interest?
    • A U.S. person or entity would suffer hardship if the applicant could not travel until after restrictions are lifted.
  • Does the applicant pose a threat to national security or public safety?
    • This includes a consideration of the information-sharing and identity management protocols of the individual’s country of nationality.

There are no categorical or blanket waivers, but Travel Ban 3.0 provides specific examples where a waiver might be appropriate in Section 3(c)(iv), assuming the above standards are also met. Examples include the following:

    • Applicant has previously been admitted for work, study, or other long-term activity and plans to continue that activity.
    • Applicant previously established significant contacts with the U.S. for work, study, or other lawful activity.
    • Applicant seeks to enter the U.S. for significant business or professional obligations and denial of entry would impair those obligations.
    • Applicant seeks to enter the U.S. to visit or reside with a close family member (e.g., spouse, parent, or child).
    • Applicant is an infant, young child, or adoptee, or an individual needing urgent medical care.
    • Applicant has been employed by the U.S. government.
    • Applicant is traveling for purposes related to an international organization.
    • Applicant is a Canadian permanent resident who applies for visa in Canada.
    • Applicant is traveling as a U.S. government-sponsored exchange visitor.
    • Applicant is traveling at the request of a U.S. governmental department or agency for law enforcement, foreign policy, or national security purposes.

When being considered for a waiver, individuals may be asked to provide additional personal information. While there is no specific waiver application, individuals are encouraged to submit information to show they qualify for an exemption or waiver. The waiver adjudication may take additional time to process.

In the meantime, the U.S. Supreme Court has agreed to hear a case challenging the validity of Travel Ban 3.0 this spring.

If you have questions about the process, please reach out to your Jackson Lewis attorney.

If foreign national employees have recently experienced trouble scheduling INFOPASS appointments, it may be because USCIS is preparing for an expected rollout of a new pilot program over the next couple of months. Instead of standard self-service online scheduling of appointments, the National Customer Service Center (NCSC) first will be coordinating scheduling for five selected District Offices.  The American Immigration Lawyers Association (AILA) announced that USCIS plans to institute this program to avoid INFOPASS appointments for issues that it believes could be resolved by NCSC.  Only after individuals seeking an appointment speak to two tiers of officers will NCSC decide if an INFOPASS appointment should be scheduled.  It seems that the five pilot offices will be Hartford, Connecticut; El Paso, Texas; Jacksonville, Florida; and Sacramento and San Francisco, California.

There has not yet been an official announcement from USCIS but Jackson Lewis will continue to follow this situation.

Travelling to another country for medical procedures, or medical tourism, is a growth industry both as an export and an import. U.S. citizens may travel for medical treatments that are less expensive and patients with means come to the U.S. for high-quality services that may not be available abroad. Paying full cost for the services provides a healthy stream of income for some U.S. healthcare facilities.

But high-quality medical treatment is not the only attraction for a particular type of medical tourist. As one of a few countries that grants citizenship to any person born on American soil, a cottage industry has developed around birth tourism. Pregnant women by the thousands from countries that includes China, Taiwan, Saudi Arabia, South Korea, Nigeria, Turkey, Russia, Brazil, and Mexico come to the U.S. every year to give birth to U.S. citizens.

Although President Donald Trump has railed against “anchor babies,” there is no law that prohibits foreign nationals from coming to the U.S. to give birth, although many end up committing immigration fraud by misrepresenting the purpose of their visits to gain entry or obtain an appropriate visa.

Some who come to the U.S. to give birth find themselves in less than ideal situations (in terms of housing and medical care) and may even be putting their babies at medical risk. But, for the wealthy among them, birth tourism can be a luxurious semi-vacation and an investment in the future for their children and their families. Spending up to $80,000 for birth tourism packages advertised online, these mothers-in-waiting also visit shopping centers and restaurants and contribute to the economy in the areas where they congregate, particularly in California, New York, and Florida.

U.S. officials, however, are cracking down on the birth tourism industry for tax fraud, contractual breaches, immigration fraud (helping birth tourists get visas under false pretenses), and even zoning violations. ICE officials have raided “birth hotels” in California and has been reported that at Los Angeles International Airport, CBP has been tightening security particularly for pregnant Chinese women who are trying to enter the country.

One of the biggest advantages of having a U.S. citizen child is that once that child reaches the age of 21, he or she could sponsor for a Green Card the parents who “gave” the child U.S. citizenship in the first place. That family unity benefit, called “chain migration” by Trump, is another one of the immigration programs that Trump would like to eliminate.

 

Following up on the U.S. Court of Appeals for the D.C. Circuit Order of February 21, 2018, DHS has requested still more time to review the H-4 EAD Rule.  In a status report filed on February 28, 2018, just a week after the Court’s Order granting DHS’ request to continue to hold the case in abeyance based upon the Department’s assertion that it would issue a Notice of Proposed Rulemaking in February 2018, DHS concluded that it could not meet that deadline.  DHS stated that it “has determined that significant revisions to the draft proposal” are required and that those revisions will require “a new economic analysis.”

DHS now has told the Court that it plans to publish the new Rule in June 2018. How the Court will react to this status report and how this new analysis will affect the Rule’s prospective provisions remain unknown.   In the meantime, those with H-4 EADs and their employers have been waiting for over a year for DHS to make its final move on the Rule and still have no certainty, potentially leaving them considering their options in anticipation of the Rule allowing H-4 EADs being rescinded.