Having terminated Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone in May 2017 and having announced the limited extension of TPS for Haiti and Sudan until January and November 2018, respectively, the Trump Administration has turned its attention to Central America.

Approximately 300,000 immigrants from El Salvador, Honduras, and Nicaragua are protected from deportation by the TPS program. Hondurans and Nicaraguans were offered TPS protection in 1998 after Hurricane Mitch struck those countries. El Salvadorans received similar protection in 2001 after earthquakes ravaged that country.

TPS for Nicaraguans was set to expire in January 2018. Acting Homeland Security Secretary Elaine Duke concluded that conditions in Nicaragua have improved to the point where the protection is no longer mandated by statute. The Administration believes that conditions in the country are now actually better than they were before the hurricane. In addition, the Nicaraguan government has not requested an extension and apparently is prepared to repatriate its nationals. Accordingly, TPS for the approximately 5,000 covered Nicaraguans will be terminated. The program will be extended until January 2019 to give beneficiaries time either to seek another immigration status in the U.S. or prepare to leave the country.

TPS for Hondurans is set to expire in January 2018, as well. Because Duke did not believe she had enough information to decide regarding Honduran TPS, that benefit will be automatically extended until July 2018, for now.

TPS for El Salvador is set to expire in March 2018 and no decision on extension or termination has been announced.

With each extension, reconsideration is always possible. Therefore, Haitians, Nicaraguans, and their employers may have yet another reprieve. In an attempt to eliminate this ongoing uncertainty, Representative Carlos Curbelo (R-Fla.) introduced the bi-partisan Extending Status Protection for Eligible Refugees (ESPERER) Act. ESPERER would allow immigrants who were in the United States and received TPS protection prior to January 13, 2011, to adjust their status to legal permanent resident status.

Employers with TPS individuals on staff should monitor developments in this area and calendar necessary I-9 employment eligibility re-verification for affected individuals to maintain recordkeeping compliance. Due to the complexity of this area of law, employers should always consult with counsel to avoid inadvertently discriminating against affected employees.

The USCIS has issued the following notice regarding scam emails requesting I-9 information:

USCIS has learned that employers have received scam emails requesting Form I-9 information that appear to come from USCIS. Employers are not required to submit Forms I-9 to USCIS. Employers must have a Form I-9, Employment Eligibility Verification, for every person on their payroll who is required to complete Form I-9. All of these forms must be retained for a certain period of time. Visit I-9 Central to learn more about retention, storage and inspections for Form I-9.

These scam emails come from a fraudulent email address: news@uscis.gov. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address and a fraudulent download button that links to a non-government web address (uscis-online.org). Do not respond to these emails or click the links in them.

If you believe that you received a scam email requesting Form I-9 information from USCIS, report it to the Federal Trade Commission. If you are not sure if it is a scam, forward the suspicious email to the USCIS webmaster. USCIS will review the emails received and share with law enforcement agencies as appropriate.

For a full listing of Common USCIS Scams, please click here.

Every employer in the United States would be required to use E-Verify to determine whether employees are authorized to work if “The Legal Workforce Act of 2017” (LWA) is passed.

Supported by President Donald Trump and introduced by Representatives Lamar Smith (R-Tex.) and Ken Calvert (R-Cal.) to “turn off the jobs and benefits magnet” that attracts undocumented workers, LWA will create a database of information about every employee in the country. The bill was passed by the House Judiciary Committee on a party-line vote. Representative Bob Goodlatte (R-Va.), chairman of that committee, sees LWA as a way to prevent “future administrations from engaging in lax immigration enforcement.”

The bill includes:

  • Preemption of duplicative state E-Verify laws
  • Locking of Social Security numbers to protect against identity theft
  • Granting of a safe harbor to employers who use E-Verify “in good faith”
  • Raising penalties for knowingly hiring undocumented workers

Under LWA, employers must comply based on the number of employees they have as follows:

  • 10,000 or more employees – within 6 months after enactment
  • 500 or more employees – within 12 months after enactment
  • 20 or more employees – within 18 months after enactment
  • 1 or more employees – within 24 months after enactment

As currently written, agricultural labor and services are exempt from the bill’s strict schedule. Those employers would have 30 months to implement E-Verify. Companies that recruit or refer employees, however, must comply within 12 months.

Congressional Democrats have opposed a “stand-alone” E-Verify bill and have suggested that mandatory E-Verify could be included in a bill that would protect DACA beneficiaries. E-Verify’s 0.3% error rate, according to Representative Zoe Lofgren (D-Cal.) when discussing the 2015 version of LWA, would mean between 162,000 and 465,000 workers could be wrongly flagged as unauthorized to work in the first year following enactment and need to go through what can be a frustrating process of proving employment eligibility and possibly losing employment.

Trump has long been a proponent of mandatory E-Verify use. Following his “Buy American, Hire American” Executive Order, the USCIS encouraged all employers to use E-Verify.  In addition, recent budget proposals have included funding for an expansion of E-Verify.

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

All I-129 petitions, whether initial requests or requests for extension of visa status, will be subject to the same level of scrutiny, USCIS has confirmed. The agency will no longer defer to the findings of a previously approved petition even when the key elements of the petition have remained unchanged. This will affect most nonimmigrant workers in the U.S.

This is another policy change following President Donald Trump’s “Buy American, Hire American” Executive Order.

Each case will be reviewed on its own merits and the burden of proof in establishing eligibility will remain, at all times, with the petitioner. Employers filing requests for extension for their employees cannot assume that if the petition was previously approved, it will be approved again. This will heighten the anxiety that employers and foreign national employees are already feeling due to the Administration’s stance on foreign national employees and the protection of U.S. workers.

The USCIS policy regarding “deference” has been in effect since it was set out in a 2004 policy memorandum.  In a separate 2015 policy memo regarding L-1B adjudication, USCIS reiterated its deference policy with regard to L-1B extensions.  Both the 2004 memo and the section of the 2015 memo regarding deference now have been rescinded.

The official rescission of the deference policy comes as no surprise. Immigration attorneys and employers have seen heightened scrutiny in the form of numerous Requests for Evidence (RFEs) from USCIS seeking further documents and information in order to approve extension requests. At first, such RFEs appeared to affect primarily H-1B cap cases, but it then became clear to practitioners and petitioners that extensions also were being subject to RFEs at an increased rate. USCIS’ latest policy memorandum simply formalizes what had become the apparent policy.

 

When President Donald Trump issued his first immigration executive orders in January, enforcement was a primary focus. With the “Buy American, Hire American” Executive Order, it was clear that the Administration plans to increase worksite enforcement. This was confirmed by Acting Director of ICE Thomas Homan in a speech at the Heritage Foundation. Homan reported:

  • ICE has already increased the number of inspections and worksite operations
  • A further significant increase in these activities is plan for the next fiscal year
  • The time spent on enforcement will rise by four or five times
  • ICE will not only prosecute employers who hire illegal workers, but also detain and remove illegal workers

A video of the Director’s speech can be found at: http://www.heritage.org/immigration/event/enforcing-us-immigration-laws-top-priority-the-trump-administration.

This is yet another example of the Administration’s ongoing enforcement culture aimed at protecting the jobs of U.S. workers through worksite investigations and strict scrutiny of visa petitions and applications. Fines for I-9 paperwork violations were almost doubled last year – so that paperwork violations are now $216 – $2,156 per form. Employers should be prepared for greater scrutiny of their compliance programs and higher fines if their worksites are investigated.

Please reach out to your Jackson Lewis attorney for information about I-9 and E-Verify audit and compliance services and how to strategize and prepare for the next ICE enforcement action.

On the eve of its taking effect, President Donald Trump’s third attempt at a travel ban has been blocked by the District Court in Hawaii.

On October 17, 2017, Judge Derrick Watson granted a nationwide temporary restraining order holding that the newest travel ban executive order (dubbed “EO-3”) suffered the same legal maladies as its predecessor: “it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States’ . . . [a]nd EO-3 plainly discriminates based on nationality.” Judge Watson had granted injunctive relief blocking Trump’s second iteration of the travel ban.

Signed on September 24, 2017, the third travel ban placed various indefinite restrictions on the entry of nationals from Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela. The Judge’s Order does not block the restrictions on North Korea and Venezuela because those were not challenged by the State of Hawaii in its Third Amended Complaint.

The White House stated that this new ruling was “dangerously flawed” and “undercuts the President’s efforts to keep the American people safe . . . .”

Judge Watson has promised an expedited hearing schedule. The Department of Justice has stated that it would appeal expeditiously. In the meantime, the Department of State has instructed Embassies and Consulates abroad to disregard EO-3 for now and resume the processing of visas for nationals from Chad, Iran, Libya, Somalia, Syria, and Yemen.

Other cases challenging EO-3 are pending, and late Tuesday evening in a related case, District Court Judge Theodore Chuang of Maryland issued an order granting a preliminary injunction blocking the travel ban, finding it was the “inextricable re-animation of the twice-enjoined Muslim ban.”

 

As part of the Trump Administration’s “Buy American, Hire American” Executive Order, the State Department’s Bureau of Consular Affairs (BCA) is joining with the Department of Justice’s Civil Rights Division to combat both visa fraud and potential discrimination against U.S. workers. The partnership between the two agencies is based upon a Memorandum of Understanding (MOU) that focuses on information-sharing.

The Employee Rights Section (IER) of the Civil Rights Division enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) on citizenship or national origin discrimination in the hiring, firing, or recruiting of employees. Traditionally, this agency focused on discrimination against foreign-born workers, but the Trump Administration has shifted the focus to the impact of visas on the U.S. worker. The BCA, among other things, strengthens U.S. border security by reviewing and adjudicating immigrant and non-immigrant visa applications abroad.

Under the MOU, the agencies “will share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.” The MOU also says that, although injured parties can file complaints with the Civil Rights Division (the IER), the IER may initiate independent investigations “if there is reason to believe unlawful discrimination has occurred.” This agreement is part of the Department of Justice’s Protecting U.S. Workers’ Initiative, launched in February 2017, to defend U.S. workers from discrimination by employers who favor foreign visa workers.

This recent collaboration between the DOJ and BCA is another part of the Trump Administration’s efforts to scrutinize H visa applications. In August 2017, the Foreign Affairs Manual was changed to encourage Consular Officers to consider whether there might be some aspect of fraud being committed as they adjudicate H-1B and other visa applications. With the new agreement in place between the BCA and the IER, any information gathered through personal interviews of visa applicants at the Consulates can be transmitted easily not only back to the USCIS for possible revocation of a petition, but also to the IER for possible investigation.

If you have any questions about visa interviews abroad and their possible ramifications, please contact your Jackson Lewis attorney.

 

We previously reported on the Department of State’s acceptance of applications for the diversity immigrant lottery. Since then, the DOS has announced on the Diversity Lottery website:

Due to a technical issue, the DV-2019 entry period that began on October 3 has been closed. Entries submitted during October 3-10 are not valid and have been excluded from the system; they will not count as a duplicate entry. The technical issue has been resolved and a new full entry period will begin at noon, U.S. Eastern Daylight Time on Wednesday October 18, 2017 and will run until noon Eastern Standard Time on Wednesday November 22, 2017. Only entries submitted during this period will be accepted and considered for selection in the lottery. Please throw away any confirmation number or other documentation that you have if you submitted an entry during Oct. 3-10.

Any individuals who applied between October 3 and October 10 must reapply. Additional information on the lottery can be found on the Diversity Lottery website.

 

 

The USCIS has started conducting in-person interviews for all employment-based adjustment of status (AOS) applicants whose applications were filed on or after March 6, 2017. The AOS will not be approved until after a “successful” interview.

Although there is no formal guidance as yet, there have been some reports on what to expect.

The Process

  • After review, the USCIS Service Centers will send cases to the National Benefits Center (NBC).
  • The NBC will get the case file into an “interview ready state” and generate the interview notice based upon availability at the appropriate local office.
  • The expectation is that interview notices will be sent at least 30 days in advance of the appointment.
  • The case file will be transferred from the NBC to the appropriate local office for the interview.
  • The NBC will try to schedule interviews for family groups together.
  • All dependents will be interviewed, although there may be a waiver for children under 14 years of age.

The Questions

The USCIS announced that “[c]onducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjustment process, and to determine the credibility of the individual seeking permanent residence in the United States.” Applicants can expect to have their credibility tested by the Field Officer regarding any information in their filings including:

  • Work Experience
  • Current Job
  • Educational Background
  • Potential grounds of inadmissibility
  • Maintenance of status
  • Job portability
  • Bona fides of the relationships between any dependents and the principal beneficiary

The subject of the interview is the AOS. In most cases the employer’s underlying I-140 (Immigrant Worker Petition) will have been approved prior to the interview and is not being adjudicated through the interview. However, where work experience or other employment-related facts on which the I-140 was based are called into question, local offices may return the I-140 to the appropriate Service Center for review.

Each applicant, including dependents, will receive their own interview notices. The notices will contain lists of documents to bring to the interview. These notices at least initially will be boilerplate but applicants should expect to be asked to bring the originals of all relevant civil documents, letters and degrees submitted as copies with the filing. Dependents should plan to bring evidence of the bona fides of their relationship with the primary beneficiary. The above-listed issues will impel the production of different types of documentation depending on the circumstances of individual cases. We encourage clients to contact their Jackson Lewis immigration counsel for guidance on appropriate documentation for the interview.

Because of the additional interview workload, delays are expected especially in San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles. Since the required medical examinations are only valid for one year, applicants may want to consult with their attorneys as to when and where to submit their medical examinations. Depending upon the rules at the time of filing, submission of the medical exams in response to a later agency request or at the interview may be both possible and preferable.

Attorney representation has always been allowed at adjustment of status interviews. Jackson Lewis attorneys have substantial experience preparing applicants for these interviews. Because AOS applications are fact-specific, each application should be reviewed and judged individually by an attorney to identify issues that may need to be addressed at the interview. Once an interview notice is received, please reach out to your Jackson Lewis attorney for an assessment and advice on what to bring and how to prepare.

DHS published the official announcement in the Federal Register terminating TPS for Sudan as of November 2, 2018. Information on how to re-register for TPS and extend EADs until the termination date can be found at https://www.federalregister.gov/documents/2017/10/11/2017-22074/termination-of-the-designation-of-sudan-for-temporary-protected-status. Individuals whose current EADs expire before November 2, 2018 and who wish to extend to that date should not wait until their EADs expire.  Such individuals must re-register during the 60-day re-registration period that began on October 11, 2017 and ends on December 11, 2017.