While the Administration and Congress work to reconcile the needs of DACA recipients with concerns over border security and illegal immigration, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) have introduced a bill to reform immigration programs for high-skilled workers. If the bill passes, it would go a long way to maintaining U.S. competitiveness in the global economy.

President Donald Trump has long talked about taking a merit-based approach to immigration, and, according to Senator Hatch, the Immigration Innovation Act of 2018 (“I-Squared”) is just that. Hatch said, “As I’ve long said, high-skilled immigration is merit-based immigration, and we need a high-skilled immigration system that works. [I-Squared] will help ensure that our companies have access to the world’s best and brightest . . . .”

Unlike the RAISE Act, sponsored by Senators Tom Cotton (R-AR) and David Perdue (R-GA) and supported by Trump, I-Squared would not cut legal immigration over a 10-year period. Instead, it proposes an increase in programs for high-skilled foreign workers while still protecting U.S. workers.

Some key provisions of I-Squared regarding H-1B visas include:

  • Increasing the annual allocation of H-1B visas to a maximum of 195,000, based upon demand;
  • Adding an unlimited number of exemptions for those with U.S. master’s degrees if the employer has or will sponsor the employee for a green card;
  • Providing work authorization for H-4 dependents where the H-1B spouse has a pending or approved Labor Certification or I-140 and require H-4 employers to certify they will pay the spouse the greater of the actual wage or the prevailing wage;
  • Prioritizing adjudication of cap-subject H-1Bs based upon a degree hierarchy;
  • Streamlining the H-1B process for employers who file multiple nonimmigrant or immigrant petitions;
  • Prohibiting the displacement of U.S. workers with H-1B workers;
  • Restricting exemptions for H-1B dependent employers, including many outsourcers;
  • Raising prevailing wages; and
  • Raising ACWIA fees, based upon employer size and the number of H-1Bs available each year, to promote American ingenuity by using the new funds to increase STEM education funding.

I-Squared also proposes changes in green card programs. Key provisions would:

  • Eliminate per country numerical limitations on immigrant visas and recapture unused visas from FY 1992 through FY 2013 to cut the backlogs;
  • Increase portability;
  • Add 35,000 employment-based conditional immigrant visas; and
  • Create dual intent for students to make it easier to apply for green cards from student status.

I-Squared is supported by the high-tech sector, the Society for Human Resource Management, and the U.S. Chamber of Commerce. The U.S. Chamber of Commerce said it is “thankful to Senators Hatch and Flake for introducing the Immigration Innovation Act of 2018. The bill would vastly improve high-skilled immigration to the U.S. by establishing market-based H-1B quotas and instituting various reforms to our employment-based immigrant visa system that would make our nation’s immigration system more merit-based.”

Versions of I-Squared were introduced by Hatch in previous sessions of Congress. Hatch hopes that this time, the bill might be included in the immigration discussions underway regarding DACA.

The Trump Administration has released a new framework containing components of proposed immigration reform.

Not surprisingly, border security is at the top of the list and includes the following components:

  • New $25 billion trust fund for the (southern) border wall system
  • Funds for hiring more enforcement personnel
  • Immigration court reforms
  • Ending the “catch-and-release” policy and establishing an emphasis on the prompt removal of illegal border crossers
  • Ensuring the removal of criminal aliens, gang members, violent offenders and aggravated felons
  • Expedited removal for visa overstays

Legalization for DACA recipients and other DACA-eligible illegal immigrants is next:

  • Increase in the number of eligible individuals to 1.8 million (from 800,000)
  • Provision of a 10-12 year path to citizenship

Ending so-called “Chain Migration”:

  • Limit family sponsorship to spouses and minor children for U.S. citizens and Legal Permanent Resident sponsors
  • Exclude parents and other non-nuclear family members from sponsorship

Ending the Diversity Visa Lottery:

  • Reallocate the 50,000 diversity lottery visas to the family-based and employment-based backlogs. As of November 1, 2017, there were approximately 4 million applicants waiting for green cards, 112,000 are employment-based applicants.

This framework increases the number of “DACA-like” recipients but is otherwise similar to the principles that the Administration offered in October 2017 in exchange for DACA relief. The new proposal, however, does not include all of the earlier proposals such as requiring the use of E-Verify and eliminating federal aid to sanctuary cities.

It is reported that the Administration believes this framework could reach 60 votes in the Senate although its fate in the House is likely more uncertain. Due to the Administration’s DACA rescission in September 2017, Congress has only until March 2018 to find a solution for the future of the “Dreamers.”  More details about the framework are expected from the Administration soon.

Post-shutdown, while Congress debates immigration and the future of the “Dreamers,” the litigation over the legality of President Donald Trump’s rescission of DACA is speeding up. The U.S. Supreme Court accepted the request for an expedited review of the Administration’s petition for certiorari and has set February 2, 2018, as the date when briefs must be submitted.

In September 2017, just after the rescission was announced, close to 20 states and the District of Columbia filed lawsuits challenging the rescission.  In January, a federal judge in San Francisco, William Alsup, issued a nationwide injunction, ruling that DACA must remain in place while litigation over the legality of the President’s decision to wind down the program is pending. This opened a window for DACA beneficiaries whose applications for renewal had been barred by the rescission.

In light of the court order, USCIS issued the following guidance on January 13, 2018:

  • Individuals who were previously granted deferred action under DACA may apply for renewal.
  • Individuals whose DACA expired on or after September 5, 2016, may apply for renewal.
  • Individuals whose DACA expired before September 5, 2016, or whose DACA was previously terminated cannot submit renewal applications, but may submit initial DACA request applications.
  • USCIS will not accept applications from people who have never been granted DACA protection in the past.
  • USCIS will not accept or approve applications for Advance Parole from DACA beneficiaries (and those who currently have Advance Parole may not want to risk international travel at this time).

Congressional leadership has set a February 8, 2018, deadline for coming up with a possible solution for DACA.

Due to the current uncertainty, DACA beneficiaries should consider taking advantage of what might be a brief “window of opportunity” and file for renewals or initial applications where possible. If no permanent solution for DACA is found, only a minority of DACA beneficiaries likely will have other options for remaining in the U.S. and retaining work authorization. There may be family or employment-based avenues to permanent residence, but what options might be available is a complex and fact-specific determination.

Employers who wish to discuss options or the best way to reach to DACA employees without risking accusations of national original discrimination should contact their Jackson Lewis attorney.

Congress reached agreement and voted to end the government shutdown at least until February 8, 2018.

In case another impasse occurs, this is how a federal government shutdown would affect immigration.

Department of Labor (DOL)
The Office of Foreign Labor Certification (OFLC) will stop processing all applications, and its personnel will not be available to respond to inquiries by email or other means. OFLC’s web-based systems, iCERT and PERM, will be inaccessible, and Board of Alien Labor Certification Appeals (BALCA) dockets will be on hold.

Therefore, if a new Labor Condition Application (LCA) is submitted for an H-1B employee and it has not been certified by the time of a shutdown, it will be not be certified until the government shutdown is over. LCAs that have not been submitted, cannot be submitted until the government shutdown is over. For any PERM green card case that is in preparation, prevailing wage requests (Form ETA-9141) and PERM applications (Form ETA-9089) will not be able to be filed until the government shutdown is over. Cases that have been submitted to the DOL and have not yet been adjudicated at the time of a shutdown will be delayed.

Department of State (DOS)
DOS will continue all scheduled passport and visa services in the United States and overseas as the situation permits.

United States Citizenship and Immigration Services (USCIS)

As a fee-funded agency, USCIS will continue its operations, with the exception of the following programs that may still need specific reauthorizations by Congress: EB-5 Regional Center Program; E-Verify; Conrad 30 J-1 doctors; and Non-minister religious workers.

Immigration and Customs Enforcement (ICE)
ICE enforcement and removal operations will continue, with primary focus on the detained docket.

Please reach out to your Jackson Lewis attorney with any questions regarding the above.

 

Following the official Federal Register notice of the termination and re-registration period for Haitian TPS beneficiaries, DHS also has published the notice of termination and re-registration period for El Salvadoran TPS beneficiaries.

Haitian TPS beneficiaries will terminate on July 22, 2019. The 60-day re-registration period will run from January 18, 2018, to March 19, 2018.  El Salvadoran TPS beneficiaries will terminate on September 9, 2019. The 60-day re-registration period will run from January 18, 2018, to March 19, 2018. EADs also should be renewed at this time. In recognition of processing issues, currently valid Haitian TPS EADs will be extended automatically until July 21, 2018.  Valid El Salvadoran TPS EADs with an expiration date of March 9, 2018, will be extended automatically until September 5, 2018.

Approximately 200,000 Salvadorans and 60,000 Haitians are affected by these termination orders. Full instructions on how to re-register are available in the Federal Register notices. If you have any questions regarding the application process and post-termination options, please reach out to your Jackson Lewis attorney.

The long-awaited announcement of the 60-day re-registration period for Haitian TPS beneficiaries is about to be published in the Federal Register on January 18, 2018. The re-registration period will begin immediately upon publication.

The Acting Secretary of DHS announced on November 11, 2017, that TPS for Haitians, previously set to expire on January 22, 2018, would be extended then terminated on July 22, 2019.

Current beneficiaries can re-register and apply for new EADs. According to the expected Federal Register notice, individuals with EADs valid through January 22, 2018, will receive an automatic EAD extension, valid until July 21, 2018, regardless of whether they apply for new EADs. In order to extend work authorization beyond July 21, 2018, until July 22, 2019, however, those beneficiaries must re-register and apply for a new EAD.

Individuals who timely filed re-registration and EAD applications during the last Haitian re-registration period and have not yet received approvals need not reapply at this time. Their applications will simply be processed under the new guidance.

The Form I-821 re-registration application does not require a fee, other than the biometric fee. EADs have the usual fee requirements. Fee waivers may be available.

The full text of the unofficial announcement, including information on reverification for I-9 purposes, can be found at https://www.federalregister.gov/documents/2018/01/18/2018-00886/temporary-protected-status-terminations-haiti.

On January 10, 2018 ICE issued a press release setting forth its three-pronged approach to worksite enforcement compliance: “compliance, through I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability.”

On 6:00 a.m. that same day, immigration agents raided 98 7-Eleven stores across 17 states. They served audit notices, interviewed employees and managers and arrested 21 workers.  Characterized as a “show of force” to highlight the Trump administration’s zero tolerance policy with regard to undocumented individuals, this operation is the largest to date under the current administration.  ICE noted that this raid was a follow-up on their 2013 investigation of 7-Eleven franchises.  In that investigation, there were arrests of nine franchise owners and managers as well as criminal fines for more than $2.6 million for wire fraud and concealing and harboring undocumented individuals.

Inspection notices were served at 7-Eleven franchises in California, Colorado, Delaware, Florida, Illinois, Indiana, Maryland, Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Texas, Washington and Washington, D.C. Sixteen of the franchises were in the New York City area.  The franchisees have three days to comply with audit requests and supply information regarding the immigration status of their employees.

Thomas Homan, Acting Director of ICE, noting that undocumented workers are a “pull factor” for illegal immigration, stated that “[t]oday’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

Texas-based 7-Eleven, Inc. noted that the stores are owned as franchises by independent business owners who are solely responsible for verifying employment authorization and that “it has terminated the franchise agreements of franchisees convicted of violating these laws.”

ICE published news accounts of the 7-Eleven raids on its Twitter account to further emphasize its stringent enforcement priorities with regard to employers and undocumented workers themselves. If you have questions about how to prepare in the face of increased targeted enforcement, please contact your Jackson Lewis attorney.

For immigration attorneys and employers of foreign nationals alike, the frenzy of the spring H-1B Cap season is right around the corner. Now is the time to start preparations for the April filing deadline.

Each year, 85,000 new H-1B work visas become available for high-skilled workers seeking employment in an “H-1B specialty occupation.” Many more H-1B applications are filed than there are slots available, and an H-1B “lottery” is triggered. While filings dropped slightly last year, the lottery is expected to be triggered again this year. But there might be other differences. The Administration has been floating the idea of changes to the lottery, including possible pre-registration to focus on the “best and the brightest.”

To ensure your chance to sponsor an employee for an H-1B work visa, follow this checklist:

  1. Identify current or prospective employees who may require sponsorship: This may include a recent graduate working for your company in F-1 status, a foreign national working for a subsidiary abroad, or individuals in other visa statuses (e.g., H-4, TN, L-1, L-2, E-3, and TPS). Review Form I-9s to identify essential employees with expiring work authorization who may require H-1B visa sponsorship.
  2. Confirm job details for the prospective H-1B employee: Especially in light of last year’s uptick in Requests for Evidence, in order to initiate the H-1B process, immigration counsel should review (among other things) the job duties, salary, and all worksite locations for the employee. Without this initial information, it is impossible to determine if the position will qualify for the H-1B visa, or if there may be wage issues or other problems with the visa sponsorship. Job descriptions must be sufficiently detailed with percentages assigned to the job duties. Level 1 wages may be subjected to heightened scrutiny.
  3. Contact immigration counsel: As soon as you determined you wish to sponsor an employee for an H-1B Cap visa, let your attorney know. In addition to confirming eligibility, immigration counsel can advise on other immigration strategies, especially if your application is not selected in the H-1B lottery. Engaging counsel early on is also necessary to ensure the H-1B Cap application can be completed and filed before the April deadline.
  4. Stay in contact with immigration counsel throughout the entire process should you have any questions: Events may occur after the application is filed that may require the employer’s assistance. This may include providing additional documents/information pertaining to the application in response to a government request for additional evidence, as well as helping to ensure an employee maintains immigration status while the H-1B application is pending. This could include reminding the employee not to travel internationally while the application is pending, as well as reminding an F-1 employee to file for an OPT STEM extension, if eligible (even if the H-1B Cap application was selected for processing). The employee’s Form I-9 also may need to be updated to indicate continued work authorization under the “Cap-Gap” regulations while the application is pending.

Starting early and working with an experienced immigration counsel can help to alleviate some of the stresses of the process H-1B Cap process and give your application the best chance at success. Following our tips will put you on the right track to avoid common H-1B pitfalls.

If you have any questions about H-1B visas or any other immigration matter, please reach out to your Jackson Lewis attorney. We will be monitoring any changes and are prepared to advise you on those developments.

Reports about the possible elimination of AC-21 extensions (for H-1B workers awaiting green cards) are now being denied by the government. The USCIS is attempting to quell fears caused by rumors that the Administration would eliminate H extensions beyond the six-year limit for certain individuals unable to file the last step in permanent residency, adjustment of status, because of per-country limits.  The chief of media relations for the USCIS said that while the agency was considering regulatory and policy changes, “the USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States,” as long as their green card cases are pending. He noted, however, that even if the USCIS stopped granting the three-year extensions, most H-1B holders with pending green card cases would still be eligible for the one-year extensions under the current statute.

Elimination of these extensions was strongly opposed by many, including Representatives Kevin Yoder (R-KS) and Tulsi Gabbard (D-HI). In a letter to President Donald Trump, they argued the foreign nationals who would be affected “are working with the American immigration system, not against it.” The U.S. Chamber of Commerce opined that such a change would be a “tremendously bad policy” because it would “harm American business, our economy and the country.” And, advocacy groups for the especially vulnerable Indian tech industry mobilized lobbyists and others to argue against any such change.

Jackson Lewis will continue to follow these and other developments regarding the H-1B program.