The U.S. Embassy and Consulates in Russia announced that “[a]s a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017.”

This is the most recent volley in the diplomatic back-and-forth that started with the reports of possible Russian involvement in U.S. elections. Following U.S.-imposed sanctions, Russia ordered the withdrawal of 755 U.S. diplomatic personnel from Russia.

Generally, the announcement means:

  • The U.S. Mission has begun cancelling current nonimmigrant visa appointments countrywide.
  • As of September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.
  • NIV applicants whose appointments are cancelled can reschedule for a later date in Moscow.
  • Some immigrant visa interviews also will be affected.
  • The Embassy in Moscow and the Consulate in St. Petersburg will no longer accept new visa applications from residents of Belarus, who are encouraged to schedule NIV appointments in Warsaw, Kyiv (Kiev), or Vilnius.
  • The current plan is to offer a block of visa appointments for students in early September.
  • The Embassy in Moscow will continue to process NIV applications without an interview for those who qualify.

The U.S. Embassy in Moscow and the three consulates in St. Petersburg, Yekaterinburg, and Vladivostok will continue to provide emergency and routine services to American citizens, although hours may change.

Please reach out to your Jackson Lewis attorney for any questions regarding the suspension.

Chicago, a sanctuary city, is challenging the Trump Administration’s ability to deny it needed law enforcement funds.

The battle between the Administration and sanctuary localities began in April, when a federal judge blocked a part of President Donald Trump’s Enhancing Public Safety in the Interior of the United States Executive Order that directed government agencies to generally deny federal funding to sanctuary jurisdictions.  The judge, however, made clear that its injunction did not prevent the Department of Justice from enforcing statutes – particularly 8 U.S.C. Section 1373. Under Section 1373, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Compliance with this statute now is a specific term of Byrne JAG grants. JAG grants provide states and localities funding to support a broad range of law enforcement initiatives.

Chicago received $2.3 million in Byrne funding last year and has applied this year for more. It uses the funding to purchase vehicles and SWAT equipment. Mayor Rahm Emmanuel announced that Chicago was challenging the Administration’s ability to force compliance with Section 1373 by withholding funding for law enforcement initiatives. The City is seeking preliminary injunction to prevent the Attorney General from imposing “unauthorized and unconstitutional conditions” on Byrne funding. The Mayor said the City “will not be blackmailed into changing our values, and we are and will remain a welcoming City.”  In other words, Chicago will not agree to allow DHS unlimited access to law-enforcement facilities and will not hold people in jail for an additional 48 hours at the request of ICE, because these actions would be contrary to Chicago’s Welcoming City Ordinance. Chicago’s history with the sanctuary movement began in 1982, when the Wellington Avenue Church decided to become part of the movement.

Emanuel further stated:

The federal government should be working with cities to provide necessary resources to improve public safety, not concocting new schemes to reduce our crime fighting resources. The City of Chicago will continue to stand up to President Trump and his Justice Department to ensure that their misguided policies do not threaten the safety of our residents.

Attorney General Sessions responded:

To a degree perhaps unsurpassed by any other jurisdiction, the political leadership of Chicago has chosen deliberately and intentionally to adopt a policy that obstructs this country’s lawful immigration system. They have demonstrated an open hostility to enforcing laws designed to protect law enforcement . . . and reduce crime, and instead have adopted an official policy of protecting criminal aliens who prey on their own residents.

Chicago is the first city to file a suit over the terms of the Byrne funding, but California has also filed a similar suit. The California legislature also is considering a bill, the California Values Act, which would further curtail local cooperation with federal immigration agents.

While unusual, the government has suspended expedited or premium processing for H-1B cases from time to time. In years past, in response to the filing of Cap cases, the start of the 15-day adjudication clock was delayed. There also have been suspensions in other situations when the USCIS anticipated increased caseloads, such as when EADs first became available for certain H-1B spouses.

On April 3, 2017, the USCIS suspended premium processing, but on June 26, 2017, it reinstated premium processing for H petitions for physicians eligible for Conrad 30 and other interested government waivers. On July 24, 2017, premium processing was reinstated for Cap Exempt employers such as universities. Full reinstatement may still be a few months away. Meanwhile, it is possible for employers to request faster processing based on certain USCIS criteria.

The USCIS might be convinced to expedite an H-1B or other petition when premium processing is not available based on one or more of the following strict criteria:

  • Severe financial loss to a company or person
  • Emergency situation (such as a grave illness)
  • Humanitarian reasons (such as a war in the home country)
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States (such as a broadcasting organization promoting democratic interests abroad)
  • Department of Defense or a national interest situation (these particular expedite requests must come from an official U.S. government entity and describe any delay as detrimental to the government)
  • USCIS error
  • Compelling interest of USCIS

If you have questions about expediting a case, please contact your Jackson Lewis attorney for assistance.

The Department of State has revised its guidance for Consular Officers on the issuance of student visas, emphasizing that the officer must be “satisfied that applicant intends to depart [the U.S.] upon completion of the approved activity.”

The guidance states:

 If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT. 9 FAM 402.5-5(E)(1)

This means that students who have H-1B visa applications pending probably should not travel, especially if they will need a new F visa to return to the U.S. There has always been some undefined risk associated with attempting to travel and/or apply for an F visa with a pending H-1B application, but now that risk is more of a reality. Those in student status who hoped to travel during the summer (with an H visa pending), perhaps to a family wedding or to attend to a sick relative, may no longer want to take the chance and, if they do travel, may have to content themselves with staying abroad until October, when they can apply for H status.

The American Association of College Registrars and Admissions Officers has already reported a decline in international student applications, in part due to the political climate.  The Trump Administration’s anti-immigrant sentiment has found expression in the travel ban, which left potential students questioning whether they were welcome in the U.S. More recently, the Buy American, Hire American Executive Order’s crackdown on H-1B visas has heightened anxiety. The Chronicle of Higher Education reported that:

For many international students, the opportunity to stay in the United States, even temporarily, after graduation and gain work experience is almost as valuable as an American degree itself. Any policy that might erect hurdles on the pathway from college to work could depress international enrollments.

Already, it has been reported that a third of the potential international applicants to U.S. colleges and universities may be feeling deterred. International students bring more than cultural diversity to the United States, they also contribute dollars to the U.S. economy as well as to the universities they attend. Stringent travel restrictions are yet another issue for potential foreign students to consider when thinking about whether they want to attend college in the United States.

Following the “Buy American, Hire American” Executive Order, issued in April, the Attorney General and the Secretaries of State, Labor, and Homeland Security have made operational changes that emphasize targeted investigations and individual official’s judgment in carrying out the purposes of the E.O. The E.O. directs the agencies to “propose new rules and issue new guidance . . . to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” 

The Department of Labor has announced increases in targeted investigations and changes to LCA forms to create more transparency. It also has raised questions over whether computer programmers actually qualify for H-1B status.  Further, Requests for Evidence from the USCIS in H-1B cases have increased substantially.

The State Department has added new guidance to the Foreign Affairs Manual (FAM), the manual used by Consular Officers abroad, regarding the adjudication of H, L, O, P, and E visas. In the sections of the FAM on H, L, O, and P visas, the following has been added:

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases . . . must be adjudicated.

Regarding E-1 and E-2 Treaty Trader and Treaty Investor visas, an additional sentence was added:

You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.

While consular officers have always been alert to possible fraud and abuse, the new guidance suggests that they will be called upon to judge what is in the economic interests of American workers and what will enhance economic growth.

H, L, O, P and E visa holders in the United States should consider consulting with their Jackson Lewis attorney before undertaking travel that will include applying for a visa abroad.

 

Over the years, the government has intensified its enforcement of employment verification procedures including increased fines and penalties, as well as potential criminal charges and charges of discrimination against U.S. citizens. The federal government introduced E-Verify in 1997 as a pilot program. E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Now, the use of E-Verify is voluntary, unless you are a federal contractor or it is required by state law. Many employers are trying to decide whether they should use E-Verify.

Below are some of the factors to consider.

The main benefit of using E-Verify is that your employees in student status who have STEM degrees would be eligible for employment authorization for up to three years without having to obtain an H-1B visa. Other benefits include:

  • Your company would be entitled to a “rebuttable presumption” that it did not hire any unauthorized workers and you cannot be charged with a “knowing” violation of the employment verification laws – which may lead to more “peace of mind” about the process
  • You find out quickly if an employee’s information does not match government databases
  • If you are audited, you may receive favorable discretionary treatment for voluntarily choosing to use E-Verify
  • By using the system, you become aware of and may be able to fix mistakes or errors precipitously
  • It is possible that E-Verify will become mandatory and you may decide that if you start using the program now, you will avoid what may be an inconvenient rush at a later date

There are, however, some down sides, including:

  • You will have to spend time (and therefore incur additional expenses) training employees to use the system
  • You must sign a Memorandum of Understanding (MOU) with the government
  • The MOU allows the SSA and DHS to perform periodic audits at your worksite and conduct employee interviews
  • The E-Verify Monitoring and Compliance Branch regularly monitors usage
  • The government has easy access to all of your company’s employment verification data, which may mean possible increased liability
  • The government can more easily mine and scrutinize your data and compare your data to other companies’
  • E-Verify staff may refer cases of suspected misuse to other enforcement agencies
  • There are additional Form I-9 process requirements, including some more stringent rules about acceptable documentation

Before you determine whether E-Verify is best for you company, please reach out to your Jackson Lewis attorney.

This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients.

A common issue for employers of non-resident aliens authorized to work in the U.S. is whether (and when) such individuals are exempt from FICA taxation.   Under the Internal Revenue Code, a nonresident alien (“NRA”) in the United States under a teacher, researcher, trainee, or student visa is exempt, within certain limitations, from FICA taxation.

To read the full blog by our colleague Amy M. Thompson, please read here.

 

President Donald Trump has announced his support for a reduction in legal immigration to the United States, backing a modified version of the bill first introduced in April by Senators Tom Cotton (R-AR) and David Perdue (R-GA).

Trump on August 2 said he embraced a new “merit-based” immigration system, which he contends will benefit American workers, and a change from the existing “family-based” system.

The proposed “Reforming American Immigration for Strong Employment (RAISE) Act” would:

  • Cut legal immigration by 50% over 10 years.
  • End diversity lottery visas.
  • Cap the number of refugees who are offered permanent residency in the U.S. each year at 50,000 (far lower than the 110,000 previously announced by the Obama Administration).
  • Discontinue green card preference given to the extended family or adult children of immigrants who already live legally in the U.S.; although spouses, children under the age of 18, and ill parents would still receive preference.
  • Create a framework to give priority to green card applicants based on factors including English language ability, education levels, and job skills.

The timing of this announcement represents a pivot by the Administration to refocusing on immigration, which was a central issue to the Trump campaign in the 2016 election, after other major issues have dominated its attention.

The bill’s prospects are uncertain in Congress, particularly in the Senate, where some bipartisan opposition is likely and the bill would need 60 votes to avoid a filibuster.

Jackson Lewis will monitor and report on the progress of this legislation as well as any other proposed immigration legislation in Congress.

The Texas Attorney General, along with counterparts in nine other states (the group that successfully challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program, DAPA), has sent a letter to Attorney General Jeff Sessions asking the Administration to rescind the Deferred Action for Childhood Arrivals program (DACA).

Created by President Barack Obama’s executive order, DAPA was enjoined by the courts as an unacceptable expansion of executive power. The case against DAPA began with the issuance of an injunction by a federal court in Texas. The Fifth Circuit Court of Appeals affirmed and the Supreme Court deadlocked on the decision, leaving the injunction in place. In June, DHS Secretary John Kelly rescinded DAPA, noting that he saw no way forward. Now, DACA itself may be in jeopardy.

The attorneys general group plans to bring the question to court if the Administration does not respond to their request by September 5, the day after the August Congressional recess. Kelly has stated that he does not believe DACA would survive a court challenge. And Sessions, a vocal opponent of DACA, has praised the 10 states’ efforts. He stated, “I like it that our states and localities are holding the federal government to account . . . .”

Meanwhile, Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) have re-introduced the DREAM Act, which would provide relief to immigrants who may lose their protected status in the proposed court challenge. Durbin first filed this legislation 16 years ago and has re-introduced the bill repeatedly over the years. In some years, it passed the House, in others, it passed the Senate, but it has never made its way out of Congress to the president’s desk. The Graham/Durbin bill reportedly would qualify 1.8 million immigrants for legal status.

A group of Republicans has introduced the Recognizing America’s Children Act, which provides five years of conditional legal status to Dreamers who are working, studying, or serving in the military. After five years, the beneficiary could apply to adjust status to permanent resident. After another 10 years, the individuals might apply to naturalize.

Senate Minority Leader Chuck Schumer (D-N.Y.) is working with immigration advocates to determine whether a political fight might save DACA. For example, could support of DACA be traded for border wall funding? Schumer has said that “the Democrats will do everything they can to protect DACA.” He also said:

“Dreamers seek to work, study, and contribute to their communities and represent the best of America . . . . The Senate Democrats will fight tooth and nail to preserve this program and hold the president to his promise to maintain it.”

President Donald Trump has said that the DACA question is a hard one and that it needs to be “handled with compassion and heart.” But, given his campaign promise to eliminate DACA, Dreamers still fear being caught up in the Administration’s enforcement policies.

Meanwhile, the Attorneys General of 20 states have sought to persuade the President to maintain DACA. We will continue to follow Congressional and court activity on DACA.