The new USCIS mission statement, issued on February 22, 2018, by Director L. Francis Cissna, no longer emphasizes customer satisfaction, i.e., the satisfaction of petitioners and beneficiaries. Instead, it focuses on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm. . . .”

The former Director of the USCIS, Leon Rodriguez, and others have pointed out that the new mission statement eliminates the mention of a “nation of immigrants,” a phrase famously used by then Senator John F. Kennedy as the title of his 1958 book on American immigration. The new mission statement states:

U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

The old mission statement included:

USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.

The new mission statement mirrors the Trump Administration’s focus on enforcement, strict scrutiny and extreme vetting.

The Supreme Court is now in the middle of two high-profile immigration cases: Travel Ban 3.0 and the DACA rescission.

The Court let President Donald Trump’s travel ban go in effect while litigation challenging the ban is pending, but the Court did nothing to overturn lower court rulings that have effectively stopped the President’s rescission of DACA while those cases are pending below.

In both the travel ban and the DACA cases, the Administration took the extraordinary step of seeking Supreme Court review before any Circuit Court opinions were issued, a procedure, called “certiorari before judgment.”

Travel Ban 3.0

In December, the Supreme Court, at the Administration’s request, allowed Trump’s Travel Ban 3.0 to go into effect, with litigation pending in both the 9th and the 4th Circuit Courts of Appeal. The Supreme Court indicated that it believed the lower courts would issue their decisions “with appropriate dispatch” hinting that it would then decide whether to grant certiorari.

The 9th Circuit upheld the district court injunction on December 22, 2017, in Trump v. Hawaii. On January 19th the Supreme Court agreed to hear that case. The Court asked the parties to brief a question that was not raised by the government, but was raised in Hawaii’s opposing brief: whether Trump’s travel ban proclamation violated the Establishment Clause. That question, however, was raised in the 4th Circuit in International Refugee Assistance Project (IRAP) v. Trump, and on February 15, 2018, the 4th Circuit held that the travel ban proclamation likely violated the Establishment Clause. IRAP has asked the Supreme Court to consolidate its case with that of Hawaii.

DACA

In the DACA case, the Supreme Court declined to step in while an appeal is pending in the 9th Circuit Court of Appeals (U.S. Department of Homeland Security v. Regents of the University of California), which effectively means the Administration cannot end DACA on March 5.

In its attempt to engage the Supreme Court, the Administration did not resort to the same tactic that it used in the travel ban case. In that case, the Administration asked the Supreme Court to block the district court injunctions while it considered certiorari. In the DACA case, the Administration asked the Supreme Court to review the case directly on its merits while the Administration pursued an appeal in the 9th Circuit. As with the travel ban, the Supreme Court noted: “It is assumed the court of appeals will proceed expeditiously to decide this case.” Although it is not clear when the 9th Circuit will issue an opinion and whether the Supreme Court would then grant certiorari, it is now unlikely that the DACA case would reach the Supreme Court before its next term.

In the meantime, Congress still has time to act.

Following California Governor Jerry Brown’s signing of sanctuary laws in October 2017, the state has been targeted for a major ICE sweep to arrest undocumented individuals. ICE Director Thomas Homan stated that because California’s sanctuary laws nearly eliminate all cooperation with state law enforcement partners, ICE actions “will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community.”

Accordingly, in January 2018, ICE issued Notices of Inspection (NOIs) to 77 companies in Northern California. Then, in a five-day period during the week of February 12, 2018, ICE made 212 arrests and issued 122 NOIs to companies in Southern California in the Los Angeles area. Of those arrested, Homan said that “88 percent . . . were convicted criminals.” Those who were issued NOIs regarding their I-9 processes had three days to prepare for the inspections on their compliance with federal employment verification laws. Findings of failure to comply result in civil fines and possible criminal prosecution for knowing law violations.

ICE has not been constrained in its issuance of penalties to employers or in its deployment of agents to actively audit employers. Since September 2017, ICE assessed one of the largest fines in its history and has conducted raids nationwide. Asplundh Tree was assessed a $95 million penalty and ICE served audit notices on 98 7-Eleven franchises and conducted raids that led to more than 20 arrests.

California, of course, is not the only enforcement target. Here are ICE’s own statistics for fiscal year 2017:

  • Conducted 1,360 I-9 audits
  • Made 139 criminal arrests, and 172 administrative arrests
  • Ordered businesses to pay $97.6 million in judicial forfeiture, fines, and restitution and $7.8 million in civil fines.

These statistics reflect the first two prongs of ICE’s three-pronged enforcement process:

  • I-9 inspections and civil fines;
  • Arrests of employers and unauthorized workers; and
  • Outreach through the IMAGE Program.

ICE’s IMAGE Program trains and certifies employers who can serve as role models for other employers. Employers seeking certification must agree to:

  • Complete the IMAGE Self-Assessment Application
  • Sign an IMAGE partnership agreement
  • Enroll in E-Verify within 60 days
  • Establish a written hiring and employment eligibility verification policy
  • Conduct yearly I-9 self-audits
  • Submit to an initial I-9 inspection

In return for certification, ICE agrees to:

  • Waive potential fines if substantive violations are discovered on fewer than 50% of the Form I-9s
  • If more than 50% of Forms have substantive violations, mitigate fines
  • Not conduct another inspection for two years
  • Provide information and training before, during, and after inspection

In this era of increasing enforcement efforts, consult your Jackson Lewis attorney regarding I-9 self-audits, I-9 processes and whether enrollment in the IMAGE Program (and E-Verify) makes sense for your company.

The DOJ and the DHS have made clear on numerous occasions that they intend to rescind employment authorization documents (EADs) for H-4 visa status holders and it appears that rescission may be just around the corner. Family members of an H-1B worker are admitted in the H-4 category.

According to DHS pleadings in the U.S. Court of Appeals for the D.C. Circuit, a Notice of Proposed Rulemaking (NPRM) will be issued by the end of February.

H-4 EADs have been the subject of litigation since the regulation creating them was issued in 2015 during the Obama Administration. Save Jobs USA, a group of high-tech workers, had filed suit in the federal district court in D.C., arguing that the DHS lacked the authority to issue the H-4 EAD regulation. Save Jobs USA lost in the district court, but it appealed to the federal appeals court just before President Donald Trump was inaugurated.

It then fell to the Trump DOJ to defend the regulation. Instead of mounting a defense, the DOJ asked for a 60-day pause in the proceedings to “allow incoming leadership personnel adequate time to consider the issues.” That pause was to conclude on April 3, 2017.

The DOJ asked for a second pause of 180 days “to permit the Department [of Justice] to re-consider the H-4 Rule and whether the issuance of a notice of proposed rulemaking relating to it [would be] appropriate.” The Court granted another pause until September 27, 2017.

On September 27, 2017, the DOJ requested yet another delay because the “DHS required additional time to assess the H-4 Rule in light of the Executive Order 13,788, Buy American and Hire American . . . .”  That request was granted until January 2, 2018.

Now, more than a year after the appeal was filed, the DOJ has requested a fourth delay to give the DHS more time to begin the NPRM to rescind the rule. The DOJ argued that, because DHS “has announced its intention to propose rescission of the H-4 Rule in its current form and remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization,” the issues raised by the litigation will become moot. In a Per Curiam Order, the Court granted the request, stating that DHS “represents that it plans to issue a notice of proposed rulemaking in February 2018 . . ..”

While the Administration’s intention to eliminate at least some H-4 EADs seems clear, how it proposes to wind down the program is not. Employers should consider back-up plans for employees on H-4 EADs such as filing H-1B cap-subject petitions in appropriate situations. For further guidance, please contact your Jackson Lewis attorney. We will continue to closely monitor this situation.

The NAACP has filed a suit in federal district court in Maryland alleging that ending Temporary Protected Status for Haiti was racially discriminatory and part of a plan to reduce immigrants of color to the U.S. (Nat’l Ass’n for the Advancement of Colored People v. Dep’t of Homeland Sec., D. Md., No. 1:18-cv-00239, complaint filed Jan. 24, 2018).  The plaintiffs allege violations of the Due Process and Equal Protection Clauses of the Constitution. They seek mandamus relief and a declaratory judgment to overturn the termination.

Finding that Haiti no longer met the requirements of the TPS program, Acting Secretary of Homeland Security Elaine Duke announced in November 2017 that Haitian TPS, which began in 2010 when an earthquake killed thousands on the island, would terminate on July 22, 2019. Although Haiti is one of the poorest countries in the world, the Administration cancelled TPS for the 50,000 to 60,000 Haitian beneficiaries because the country is no longer suffering directly as a result of the 2010 earthquake. Advocacy groups, members of Congress, and businesses that rely on these workers had argued for further extension of the TPS benefit.

The NAACP filed suit after disparaging remarks made by President Donald Trump about Haiti and African countries. The arguments in the suit are similar to those that have been made in response to Trump’s travel bans, which relied on the President’s remarks regarding individuals from Muslim countries. In addition to the termination of TPS, the Administration also decided that Haiti would no longer be eligible for H-2A and H-2B status.

The H-2 program brings unskilled workers to the U.S. to fill temporary, seasonal positions. DHS can remove any country from the H-2 program if it determines the country fails to meet requirements for continued designation. Haiti became eligible for these programs in 2012, primarily because this was seen as a way to bring some additional money into the Haitian economy and help with earthquake recovery. DHS stated that Haitians would no longer be eligible for H-2A and H-2B status because there were “high levels of fraud and abuse” by Haitians, as well as high rate of overstays (approximately 40 percent in 2016).

Haiti was not the only country to lose H-2 eligibility. Samoa and Belize were also removed from the eligible country list.

We will monitor and report on further TPS program developments. Please contact a Jackson Lewis attorney with any questions.

Following January’s ruling by Judge William Alsup in San Francisco, a second federal court has issued a nationwide injunction ordering the government to keep DACA in place.  Judge Nicolas G. Garaufis of the US District Court in Brooklyn, New York ruled that the rescission of DACA was “arbitrary and capricious” and that the equities and reliance interests favored an injunction.

In the meantime, Congress has not been able to make any progress on DACA or any other immigration reforms. The Senate’s planned debate ended this week with at least four plans being rejected including the bi-partisan bill introduced by Senators John McCain (R-Ariz.) and Christopher Coons (D-Del.) that essentially traded relief for the “Dreamers” for border security funding and the plan sponsored by Senator Chuck Grassley (R-Iowa) and other Republicans that followed President Donald Trump’s “four pillar” approach.

Although Congress has been operating as if President Trump’s March 5th deadline for providing relief to the “Dreamers” is operative, the federal court orders would appear to have  alleviated some of that pressure.  Although the actual deadline is unknown, individuals who are already beneficiaries of DACA will be able to continue to apply for renewals at least until either of the federal cases reaches its conclusion.  Even though the Trump Administration plans to vehemently defend the DACA rescission and hopes to expedite the litigation process, and, as of this writing, the Supreme Court reportedly is having a “closed-door” meeting regarding whether to expedite review of Judge Alsup’s decision, it may be months before either of these cases comes to a conclusion.

We will continue to follow DACA developments and provide updates as events warrant.

NAFTA’s TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. One TN-qualifying profession is that of an “economist,” which requires a baccalaureate or licenciatura degree. NAFTA does not provide a specific description of what an economist does, what professions would be considered economists, or the functions of an economist to qualify.

This failure has resulted in inconsistent adjudications, RFEs issued by USCIS even for extensions of TN status, and individuals questioned at the border.

To address these inconsistencies, USCIS issued a policy memorandum explaining that TN economists “must engage in activities consistent with the profession of economist.” USCIS noted that, based on the Standard Occupational Classification System (“SOC”) from the Bureau of Labor Statistics (“BLS”), economists are individuals primarily in market research analyst, marketing specialist, and financial analyst positions that did not qualify as “economists” under NAFTA.

USCIS identifies two broad focus areas of economists: (1) microeconomics (the analysis of “the behavior of individuals and firms with the aim of understanding the relationships between supply and demand”) and (2) macroeconomics (the analysis of “aggregated indicators to determine how different sectors of the economy relate to each other”). USCIS stated that some financial analysts might be recognized as “economists” if they are primarily performing economist duties specializing in microeconomic and macroeconomic analysis. These include:

  • Applying economic analysis to fields such as labor, international trade, development, econometrics, education, health, and industrial organization, among others;
  • Conducting research, preparing reports, or formulating plans to address economic problems related to production and distributions of goods and services or monetary and fiscal policy; and/or
  • Collecting and processing economic and statistical data using sampling techniques and econometric methods.

Financial analysts who “primarily conduct quantitative analyses of information affecting investment programs of public or private institutions” would not qualify, according to the USCIS memorandum.

Moreover, USCIS in the issuance of RFEs has been relying on the BLS Occupational Outlook Handbook (“OOH”) to question the qualifications of some applicants who do not have advanced degrees. The OOH states, “Most economists need a master’s degree or Ph.D. However, some entry-level jobs – primarily in government – are available for workers with a bachelor’s degree.” This is contrary to NAFTA Appendix 1603.D.1. of Annex 1603, which states that an “economist” must have a baccalaureate or a licenciatura degree.

Accordingly, it could be argued that the USCIS memorandum’s “new” definitions and eligibility requirements are not consistent with the NAFTA Treaty. However, the USCIS memorandum will be applied by USCIS and CBP officers.

Employers with individuals traveling in TN status whose positions could be considered to be in marketing or financial analysis categories must be careful of the travel risks. Whether other visa options that would be more viable in this new environment also should be explored. Jackson Lewis attorneys are available to assist you in assessing the risks and options.

California seems to be at odds with the Trump Administration over many subjects, including the legalization of marijuana, the expansion of off-shore drilling, the elimination of state and local tax deductions, and immigration.

The most recent clash over immigration began with the passage in October of “The California Values Act” (CVA) (SB54) and the Immigrant Worker Protection Act (IWPA) (AB450). California essentially became a “sanctuary” state. It also began placing affirmative obligations on employers to provide employees with notification regarding possible inspection or enforcement actions. Acting ICE Director, Thomas Homan, threatened California with targeted ICE raids.

Now that the CVA and IWPA are in effect, Homan told Fox News, “California better hold on tight. . . . They are about to see a lot more special agents, a lot more deportation officers.”

Given the planned uptick in inspections, California employers (both public and private) should be aware of the warrant and subpoena requirements of the IWPA, as well as the notice requirements in the California Labor Code, Section 90.2.

As far as notice is concerned, employers must:

  • Provide employees and their authorized representatives with a public notice, including a copy of the Notice of Inspection of I-9 Employment Eligibility Verification Forms itself, within 72 hours of receiving notice of an upcoming federal inspection. The California Department of Labor has developed a template for this Notice to Employees that can be found at: http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf
  • Upon reasonable request, provide an “affected employee” with a copy of the Notice of Inspection.
  • Provide each “affected employee” and their authorized representatives within 72 hours of receipt:
    • A copy of the written immigration agency notice that provides the results of the inspection and written notice of the obligations of the employer and the affected employee arising from the results of the inspection;
    • The notice should be delivered by hand at the workplace, if possible, and if not possible, by mail and email, if the employee’s email is known, and to the employee’s authorized representative. The notice must contain:
      • Description of all deficiencies related to that employee;
      • Time period for correcting any potential deficiencies;
      • Time and date of any meeting with the employer to correct any identified deficiencies; and
      • Notice that the employee has the right to representation during any scheduled meeting with the employer.

According to Labor Code Section 90.2, an “affected employee” is one identified by the immigration agency inspection results to be an employee who may lack work authorization, or an employee whose work authorization documents have been identified to have deficiencies.

Failure to provide these notices subjects employers to a civil penalty of $2,000 to $5,000 for the first violation and $5,000 to $10,000 for each subsequent violation.

For more information regarding all of the requirements under the IWPA, please contact your Jackson Lewis attorney.

With the February 8th deadline for debate on DACA imminent and the March 5th DACA termination deadline approaching, legislators have been introducing bills to resolve the long-standing “Dreamer” issue.

Senators John McCain (R-Ariz.) and Christopher Coons (D-Del.) have introduced a simplified measure combining DACA and border security. It would grant permanent legal status to more than 1.8 million “Dreamers.” It also would enhance security on the U.S. southern border initially through the use of drones and other technology. Under the bill, DHS must prepare a proposal regarding border security strategy within a year of passage. The bill does not provide immediate funding for a border wall. It is a companion bill to the bi-partisan Uniting and Securing America Act of 2017 (USA Act of 2017), introduced in the House by Representatives Will Hurd (R-Tex.) and Pete Aguilar (D-Cal.). That bill has 54 co-sponsors – 27 Democrats and 27 Republicans.

In an interview, Senator Coons stated he expect some border funding would have to be added. He also explained that he would continue to work with the “Common Sense Coalition” headed by Senators Susan Collins (R-Me.) and Joseph Manchin (D-W. Va.) to find a compromise on a path forward.

Earlier bipartisan legislation introduced by Senators Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.) took a similar tack. Reportedly, President Donald Trump initially supported that bill, before ultimately rejecting it. Regarding Coons-McCain, President Trump has already tweeted the following:

Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time . . . March 5th is rapidly approaching and the Dems seem not to care about DACA. Make a deal!

The Administration continues to focus on its “four pillars” framework: border security (including a $25-billion trust fund for a wall), a 10- to 12-year path to citizenship for 1.8 million “Dreamers,” an end to “chain migration,” and an end to the diversity visa lottery. The McCain-Coons bill streamlines the issues and addresses only a pathway for Dreamers and enhanced border security.

In the meantime, DACA beneficiaries may continue to apply for renewal, while they await further court rulings. A case of particular interest is whether the Supreme Court will grant certiorari to review the legality of President Trump’s rescission of the DACA program.

Our colleagues in the Workplace Privacy, Data Management & Security practice group have contributed an important and informative update on DHS policy on searches and seizures of electronic devices as it pertains to attorney-client privileged information. You can read it here.