The Trump Administration’s Unified Agenda of Federal Regulatory and Deregulatory Actions for the DHS contains close to 60 items.

Published in the spring and fall, the Unified Agenda gives information about regulations that are under development. The latest iteration represents President Donald Trump’s promise to amend and eliminate “regulations that are ineffective, duplicative, and obsolete” in order to “promote economic growth and innovation and protect individual liberty.”

Here are some changes employers can be expected in 2018.

Strengthening the H-1B Nonimmigrant Visa Classification Program:

  • Revise the definition of a “specialty occupation” to focus on the “the best and the brightest”
  • Redefine the employer-employee relationship “to better protect U.S. workers and wages”
  • Impact: This might mean a further crackdown on outsourcers and new definitions that could make it more difficult to obtain visas in certain occupational categories

Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to the Numerical Cap:

  • Streamline the H-1B Cap process by introducing an electronic registration process
  • May include a modified selection process to focus on the “best and brightest”
  • Impact: This might mean a more hierarchical approach to the selection process based upon degrees and wages

Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

  • Eliminate the H-4 EAD Rule
  • Notice of Proposed Rulemaking is expected in February 2018
  • Impact: This might mean a loss of employment authorization for approximately 100,000 spouses

Practical Training Reform

  • Improve protections for U.S. workers who may be negatively impacted by students employed in F and M status
  • Reduce fraud and abuse and increase oversight of schools and students involved in the program
  • Notice of Proposed Rulemaking is expected in October 2018
  • Impact: This might make is more difficult to hire and retain students and could result in the reduction in enrollment of foreign students at U.S. institutions

Jackson Lewis will continue to monitor the progress of these proposals.

The DHS is giving with one hand and taking with the other. In response to the December 1, 2017 federal court ruling in National Venture Capital v. Duke, the DHS is complying and implementing the International Entrepreneur Rule parole program (IER).  At the same time, the DHS is in the final stages of publishing a notice of proposed rulemaking to eliminate the program.

The requirements for IER eligibility are:

  • The entrepreneur must have a substantial ownership interest in the start-up entity
  • The entity must have been created within the past 5 years
  • The entrepreneur must have a central and active role in the entity and be well-positioned to substantially assist with the growth and success of the business
  • The entrepreneur will provide a significant public benefit to the U.S. by showing:
    • Significant capital investment from qualified investors;
    • Significant awards or grants for economic development, research and development or job creation from a government entity; or
    • Overall additional and compelling evidence of the entity’s substantial growth potential

The application process for the IER is:

  • File Form I-941, Application for Entrepreneur Rule, with USCIS
  • Once approved, the entrepreneur must visit a U.S. Consulate abroad to obtain travel documentation
  • In conjunction with the Form I-941, the entrepreneur may submit Advance Parole applications (Forms I-131) to allow their spouses and unmarried children to accompany them to the United States
  • Upon entry into the U.S., the spouse of the entrepreneur may apply for an Employment Authorization Document by filing a Form I-765
  • The forms will be filed at the USCIS Dallas Lockbox facility

How long it will take the USCIS to process these applications is unknown. And what if any grandfathering provisions there will be is yet to be seen.  Regardless, depending upon an individual entrepreneur’s specific circumstances, it may be advisable to take advantage of the current window of opportunity prior to the elimination of the program.

If you need help assessing your situation with regard to the IER, please reach out to the Jackson Lewis attorney. We will continue to monitor developments.

Extreme vetting, strict scrutiny, travel warnings, and the latest travel ban have made travel abroad more worrisome than ever this holiday season.

Reminders for individuals who will have to apply for new U.S. visas while abroad in order to return to the United States:

  • Consulates are dealing with new guidance and procedures. This means that delays may occur just as a matter of course especially because the holidays are busy times at the Consulates.
  • Make sure to check with the relevant Consulate and your airline to find out if you may need a transit visa to board your aircraft.
  • Make sure to book an appointment at the Consulate as soon as possible before leaving the United States. Consulates may not have appointments available and may have limited holiday hours.
  • Check processing times and documentary requirements on the Consular websites, but remember published times are not guarantees.
  • Carry a signed employment verification letter along with other required documentation.
  • Extreme vetting means more administrative processing. Administrative processing can result in delays of several days, weeks, or even months. Employees should inform their supervisors regarding their planned travel and have back-up plans for travel, lodging, and work should they experience a lengthy delay.
  • Under the U.S. Supreme Court’s new ruling, President Donald Trump’s Presidential Proclamation known as Travel Ban 3.0 is in effect (at least until the lower courts make additional rulings). Individuals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen may be affected.
  • Employees who have pending change-of-status or advance parole applications should not travel until after their case has been adjudicated. Under new guidance, travel during the pendency of an advance parole application can lead to a denial.

All travelers, particularly U.S. citizens, should:

If you are carrying electronic devices, remember that:

  • At many airports, all electronic devices larger than a cell phone have to be inspected at security and must be taken out of carry-on luggage. This can lead to delays.
  • Even U.S. citizens can have bags and electronic devices searched upon return to the U.S.
  • According to the ACLU, warrantless searches of electronic devices have increased by 125 percent since 2015. During the first half 2017, 15,000 such searches have been conducted. The ACLU has filed a suit in federal court in Massachusetts challenging these searches.

Finally, all travelers should remember the various strategies that can help to reduce the likelihood of delays or inconvenience when traveling. The Transportation and Security Administration has released a list of tips to keep in mind.

If you or your employees have questions about travel risks, please contact your Jackson Lewis attorneys for assistance.

On December 5, 2017, Kirstjen Nielsen was confirmed as the new Secretary of Department of Homeland Security by the Senate on a bi-partisan 62-37 vote, with just 11 votes from the Senate minority for her confirmation. Nielsen is a close aide to John Kelly, White House Chief of Staff and former Secretary DHS.

Elaine Duke, who has served in an interim capacity for four months, has said that she will continue to work with Nielsen as her deputy.

As Secretary of DHS, Nielsen will be in charge of 240,000 employees in 22 sub-agencies with broad jurisdiction and a range of responsibilities, including immigration enforcement, border patrol, aviation security, disaster preparedness, domestic counter-terrorism, the Secret Service, and the Coast Guard. A lawyer and expert in cybersecurity, Nielsen is the first Secretary of DHS who has worked at the agency before. She was Kelly’s Chief of Staff. She also has experience working at the TSA and as an advisor for emergency preparedness and disaster relief during the Bush Administration.

 

The latest version of the Trump Administration’s travel ban may take effect pending decisions expected shortly from the Courts of Appeals for the Fourth and Ninth Circuits, the U.S. Supreme Court has ruled.

The third iteration of the travel ban (Travel Ban 3.0), implemented in late-September, restricts travel to the U.S. for individuals from Chad, Iran, Libya, Somalia, Syria, and Yemen.  Travel Ban 3.0 also limits travel for individuals from the non-majority Muslim countries of North Korea and Venezuela.

Travel Ban 3.0 was targeted to cover specific categories of visa travelers. Two federal court judges had issued injunctions limiting implementation of the revised travel ban. They indicated that individuals would still be eligible for visas if they had a “bona fide” relationship to someone in the United States, including grandparents, nieces, nephews, cousins, and brothers- and sisters-in-law, or to an entity in the United States, such as an employer or a university.

By a 7-2 decision, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting, a majority of the Supreme Court overruled the lower court injunctions, allowing the travel ban to be implemented in full. The Court noted that the Ninth Circuit and the Fourth Circuit courts are both hearing oral arguments on the substantive legality of the travel ban within a week, and the Court expects decisions will be issued “with appropriate dispatch.” A decision on the underlying merits is expected to be appealed to the Supreme Court, potentially to be decided this term.

Attorney General Jeff Sessions stated that the Court’s ruling allowing the President’s proclamation to go into effect was “a substantial victory for the safety and security of the American people.”

Omar Jadwat of the ACLU, which represents some of those challenging the ban, stated: “It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims. . . . We will be arguing Friday in the Fourth Circuit that the ban should ultimately be struck down.”

We will continue to follow developments and provide updates. Please contact Jackson Lewis with any questions.

The Trump Administration rule delaying the International Entrepreneur Rule (IER) until March 14, 2018, had been implemented without following the necessary Administrative Procedures Act (APA) Notice and Comment Period regulations and was therefore illegal, a federal court has found.

The Administration has not yet commented on the court’s ruling, but likely will appeal the decision.

Beginning July 17, 2017, the Obama-era IER was to start allowing promising entrepreneurs to come or remain in the U.S. to expand the economy by growing their companies. To be eligible, applicants/entrepreneurs had to prove the potential of their start-ups based upon qualified investments and other compelling evidence. Upon proving significant potential, the applicant could be granted parole and work authorization for up to five years. The IER amended the regulations on discretionary parole by adding provisions that would allow the use of parole on a case-by-case basis for entrepreneurs who can “demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States.” The additional regulation was to be published at 8 CFR 212.19.

This merit-based approach to using the parole authority would seem to be aligned with President Donald Trump’s general desire for a merit-based approach to immigration. However, Trump is also focused on strict enforcement of the immigration laws and eliminating the expansion of discretionary benefits such as parole.  Just before the IER was to go into effect, the Administration introduced the Delay Rule. Not only did the Delay Rule delay the start date of the IER to March 14, 2018, but the Administration noted at the time that it was likely to rescind the IER altogether.

National Venture Capital Association, along with two foreign entrepreneurs, filed suit in the U.S. District Court in D.C. to force the implementation of the IER. “The controversy boil[ed] down to two competing rules,” District Judge James E. Boasberg observed. Because the Delay Rule had been implemented without following the necessary APA regulations, Judge Boasberg found it was illegal.

The Administration argued that the costs involved and the confusion that would be engendered by implementing a rule they planned to rescind constituted “good cause” for skipping the Notice and Comment period. But the court disagreed, particularly noting the government could not rely on its own delay of close to six months from January 20, 2017, until July 2017, to argue “good cause.”

The Administration’s next steps are unknown. It might not be difficult for the Department of Homeland Security to start the program.  Staff training would be required but an IER Form (Form I-941) has already been created although not implemented and changes have already been formulated although not implemented to Form I-9 and the Lists of Acceptable Documents to account for the IER.

Jackson Lewis will continue to provide updates.

The Trump Administration appears to be in the process of eliminating two rules: the H-4 EAD Rule and International Entrepreneur Rule.

In line with President Donald Trump’s “Buy American, Hire American” Executive Order and his aim for a fully “merit-based” visa scheme, a draft regulation that would end the H-4 EAD program (enacted by the Obama Administration in 2015) reportedly is being circulated. The draft regulation would need to go through the Notice-and-Comment period to comply with the Administrative Procedures Act before being adopted, likely some time in 2018.

Under the H-4 EAD Rule, spouses of H-1B beneficiaries who are in the process of getting green cards can obtain work authorization while they wait. This rule is particularly popular among the Indian and Chinese immigrant communities because their waits for green cards can be years long. Beyond allowing H-1B beneficiaries to be two-income families, the ability for spouses to obtain work authorization has been seen by some as encouraging highly skilled workers to remain in the United States. Its elimination could have a major effect on the companies that employ the approximately 100,000 individuals who are in the United States working on H-4 EADs. At this time, there are no details about how the Administration would plan to scale back the program.

Meanwhile, the International Entrepreneur Rule (IER), another Obama Administration rule, was set to go into effect in July 2017. The IER allowed foreign entrepreneurs who met certain standards (and who did not qualify for conventional visas) to come to the United States in parole status to set up new companies. This was seen as a way to expand the economy and allow the United States to compete more effectively for start-ups in the global economy. The Trump Administration, however, questioned this use of the parole authority and delayed the IER’s implementation. In fact, the Administration indicated that it was considering rescinding the IER. It has now been reported that a notice to officially end the rule was sent to the Office of Management and Budget. This is the first step before publishing a draft regulation in the Federal Register for Notice and Comment.

We will continue to monitor these developments and provide updates.

 

Six months after then-Secretary of Homeland Security John Kelly announced the extension of Haitian Temporary Protected Status (TPS) for only six months (until January 2018, when he would reevaluate the determination), Acting Secretary of Homeland Security Elaine Duke announced her decision to terminate the designation with a delayed effective date of 18 months.  She said this would allow for an orderly transition before the designation terminates on July 22, 2019.

Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the period. Further details about this termination for TPS will appear in a Federal Register notice. Termination of TPS will affect not only some 50,000-60,000 Haitians who are in the U.S. on TPS, but also their families, including approximately 30,000 U.S.-citizen children born in the U.S. to Haitians in TPS status since 2010 (when TPS was conferred after the earthquake that killed thousands on the island).

A number of advocacy groups, members of Congress, and the U.S. Chamber of Commerce had been urging a further extension based on ongoing problems from the devastating 2010 earthquake and Haiti’s limited capacity to reabsorb these nationals and family members.  They also highlighted that termination will create labor dislocations in certain construction, food processing, hospitality, and healthcare industries that have relied on Haitian TPS workers since 2010. Florida and Texas may be particularly hard hit as they continue to recover from Hurricanes Harvey and Irma.

Please reach out to your Jackson Lewis attorney if you have questions and want to discuss possible post-termination options for employees.

A bi-partisan House panel has approved the “Protect and Grow American Jobs Act,” a bill that would change eligibility requirements for exemption from the standard Labor Condition Application (LCA) requirement for H-1B-dependent employers. This is the first step in making it to the floor of Congress for a vote.

Employers who depend on the H-1B visa, many of whom are outsourcing companies that rely heavily on foreign national workers, must make additional attestations in the LCA regarding displacement of U.S. workers and good faith efforts to recruit and hire U.S. workers before obtaining additional H-1B workers. There has been bi-partisan support for legislation that would curb alleged outsourcing abuses and this bill is part of that effort.

H-1B employers currently are exempt from the additional attestations if the individuals they wish to hire in H-1B status have Master’s degrees in a relevant field or earn a minimum annual salary of at least $60,000. The Act, first introduced by Darrell Issa (R-Calif.) in January, originally would have eliminated the Master’s degree exemption and pushed the minimum salary requirement to $100,000. The amended version, which was approved by the panel, would adopt “a new formula that is equal to the lesser of $135,000 or the mean wage for applicants’ occupation in their area (but subject to a floor of no less than $90,000). The bill would also require the wage levels in this formula to be indexed for inflation over time.” The bill would require more accountability. H-1B-dependent employers must do more than make attestations; they would have to provide documentation regarding their recruitment procedures.

This bill has had a mixed reception. Some protest that it would simply push jobs overseas. Others see it as a good way to help to curb abuses.

We will continue to follow the progress of this legislation.

The Ninth Circuit Court of Appeals has ruled to allow President Donald Trump’s latest travel ban proclamation to go into effect – at least in part.

Ruling on the injunction issued by the District Court in Hawaii that temporarily blocked the enforcement of the new ban, the Ninth Circuit determined that the travel ban could go into effect for now, except with regard to people with a “bona fide relationship” with close family or with an entity in the U.S., such as an employer or a university. This standard was borrowed from the Supreme Court’s ruling on the earlier travel bans.

Individuals from six countries — Chad, Iran, Libya, Somalia, Syria, and Yemen — may be banned from entry, unless they have a bona fide relationship with a U.S. family member or entity. The Ninth Circuit ruled that in addition to parents, spouses, and children living in the U.S., bona fide relationships could extend to grandparents, grandchildren, cousins, aunts, uncles, and brothers- or sisters-in-law. Entity relationships must be “formal, documented, and formed in the ordinary course,” including universities, businesses, and other institutions.

The proclamation’s bans on North Korea and Venezuela were not included in the original suit brought before the Hawaii District Court. Accordingly, it appears that entry as immigrants or nonimmigrants remains suspended for North Korea and entry in tourist or business visitor status remains suspended for officials of certain Venezuelan government agencies and their immediate family members.

The Administration plans to implement the suspension consistent with the Ninth Circuit’s ruling and will continue to appeal the case in order to be able to fully implement the travel ban proclamation.

Meanwhile, the Administration’s latest Executive Order regarding the refugee resettlement program is being challenged. Trump issued an Order on October 24 that restarted the country’s refugee resettlement program. That Order, however, imposed new restrictions on many of the countries involved in the program and indefinitely blocked the part of the program that allowed refugees to bring their spouses and children to the U.S. A number of refugee assistance groups have joined in a lawsuit in the U.S. District Court in Seattle seeking to enjoin this new Order. The groups are challenging the Administration’s authority to issue the new restrictions and arguing that these restrictions discriminate against Muslim refugees.

We will continue to monitor the implementation of the travel ban proclamation. If you have questions about how the latest developments affect visa application and/or travel plans, please reach out to your Jackson Lewis attorney.