Insight, News, and Strategy on Immigration Matters Around the World
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:
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.
Could barring evidence in court of undocumented workers’ immigration status actually prevent employers from hiring illegal immigrants? It could, according to one Illinois district court judge.
Please read the full post by our colleagues Ellison F. McCoy and O. John Norris, III here.
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:
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.
In a one-paragraph ruling, the U.S. Supreme Court, disagreeing with the Administration, allowed the District Court’s injunction to stand with regard to relatives. Individuals from the six designated countries with grandparents and other close relatives in the United States will not be subject to the travel ban – for now.
The Court, however, put the District Court’s injunction regarding refugees on hold, allowing the government’s interpretation to stand. Assurances from a refugee agency will not qualify as a bona fide relationship – for now. The Justices sent the matter back to the Ninth Circuit for resolution. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have let the government’s limited interpretation to stand in total.
The Supreme Court plans to take up the full case in October.
An additional 15,000 H-2B visas will be released in response to industry demand. The USCIS will begin accepting petitions on July 19, 2017, for the fiscal year which ends on September 30, 2017. Petitions will be accepted until the 15,000 visas run out or until September 15, 2017, whichever comes first. This is only a one-time increase.
Although Secretary Kelly had been hesitant to release additional visas, Congress granted him the authority to increase the total number available in an effort to eliminate the hardship to U.S. businesses that have relied on these workers in the past, but were unable to fill temporary, seasonal positions because the visas ran out on March 13, 2017.
The additional 15,000 H-2B visas come with new requirements. In order to file the petition, the employer must:
Once the petition has been filed:
While evidence of irreparable harm is not required, submitting some documentation could be helpful. In any case, employers must maintain documentation of the harm for three years and present it if requested.
Once the petition is approved, the employee may need to obtain an H-2B visa before entering the U.S. Given the requirements, processing times, and the fact that new recruitments may have to be conducted, it can take up to eight weeks to put new H-2B workers on the payroll.
Although employers hoped for more, the 15,000 visas should provide some relief to those who are able to file quickly and satisfy the requirements of the new rule.
For help filing H-2B petitions, please reach out to your Jackson Lewis attorney.
President Donald Trump’s March 6th revised Executive Order directs the Secretaries of State and Homeland Security, the Attorney General, and the Director of National Intelligence to review information sharing and develop uniform screening and vetting standards and procedures for visas and other immigration benefits. In June, the Ninth Circuit Court of Appeals held this review could proceed, and the State Department issued its first guidance to all U.S. diplomatic posts on July 12, 2017. Eventually, there will be lists of countries that meet and not meet the new standards.
According to the guidance, within about 50 days, “posts must inform host governments of the new information sharing standards and request that host government provide the requested information or develop a plan to do so.” Countries that fail to comply may face travel sanctions. The Administration explained in the revised EO that the six countries currently subject to the travel ban were selected because they had “been significantly compromised by terrorist organizations, or contain[ed] active conflict zones” and that those “circumstances diminished the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.” Now, those six countries may have an opportunity to be dropped from the list of banned countries, while other countries might be added.
All countries, even visa waiver countries, will be expected to share information on identity management and security and public safety threats.
According to the July 12 cable to all U.S. diplomatic posts that was published by Reuters, through a series of questions, the posts must determine whether their host countries:
The U.S. government reportedly has made a preliminary determination about countries that do not currently meet the new standards and countries that are “at risk” of not meeting the standards. The State Department guidance also states that there could be “a presidential proclamation that would prohibit the entry of certain categories of foreign nationals of non-compliant countries.”
Visa waiver countries will be informed that much of information being required overlaps with the standards for the visa waiver program and that the United States “will continue to engage VWP countries on the requirements set forth in the ‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.’”
DHS announced on July 17, 2017, a one-time increase of 15,000 H-2B visas – still short of the number Congress had authorized. Given visa processing times, it may already be too late for businesses that rely on the summer season.
The summer is half over and well-known vacation areas are in turmoil because companies have not been able to find enough seasonal workers to handle the influx of tourists. Restaurants and bakeries on Cape Cod, amusement parks in the Midwest, hotels on lake islands, and fisheries in Alaska have been looking for temporary workers to fill jobs usually taken by trusted, experienced workers who return to work for them seasonally, sometimes year after year, on H-2B visas.
The statutory limit on the number of H-2B visas available each year is 66,000. However, until last year, an exemption from the limit for “returning workers” allowed more. In 2016, Congress failed to renew that exemption. In March 2017, H-2B visas for seasonal workers ran out. This means that employers relying on such seasonal workers, particularly those that constitute the summer tourist industry, have been left in the lurch. Congressmen from states that need seasonal workers failed to gain enough support for legislation to reinstate the exemption. In May, however, a provision was added to the omnibus spending bill that authorized Secretary of DHS John Kelly to increase the number of visas available from 66,000 to as high as 129,000. Employers have been anxiously waiting for more visas, but, until July 17, none have been forthcoming, and time was running out for companies that need revenue from the summer season to stay in business.
In June, Congressman William Keating (whose district includes Cape Cod) reported Secretary Kelly stated that his sense of the omnibus resolution was that Congress did not want to expand the number. Keating responded that there was “huge bipartisan support for [the increase]” and that it would not come at the cost of any U.S. worker jobs.
Employers are continuing to struggle to find U.S. workers. Lacking sufficient staff, businesses have had to cut their hours of operation, creating a ripple effect among U.S. workers in the tourist industry who are losing hours as well. Some businesses are turning to overtime. For many, that is not a sustainable model.
At the end of June, DHS announced that Kelly would use the authority granted by Congress to increase the visa number limit. On July 11, Senator Thom Tillis (R-N.C.), who represents a state that uses more H-2B visas than any (besides Texas and Colorado), put a “hold” on President Donald Trump’s nominee for USCIS director, Lee Francis Cissna, until Kelly releases more H-2B visas.
If you are in need of H-2B workers, contact your Jackson Lewis attorneys for further information.
On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.
The changes noted below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).
Revisions to the Form I-9 instructions:
Revisions related to the List of Acceptable Documents on Form I-9:
If you have any questions about the new form, please contact your Jackson Lewis attorney for assistance.
Judge Derrick Watson in Honolulu has enjoined the federal government from using President Donald Trump’s partially reinstated travel ban to bar grandparents and other close relatives from entering the United States. He also has enjoined the government from banning refugees who are the beneficiaries of a sponsorship assurance from a resettlement agency.
When the U.S. Supreme Court partially reinstated the travel ban, it held that the ban could not be applied to individuals who have “a credible claim of a bona fide relationship with a person or entity in the United States.” Following that ruling, the government issued guidance interpreting what would constitute a “close familial relationship” for purposes of showing such a bona fide relationship. On the family side, the close relationship was limited to parents (including in-laws), spouses, fiancés, children, adult sons and daughters, sons-in-law, daughters-in-law, and siblings including step-siblings and other step-family. The government specifically excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law or other extended family. On the refugee side, the government concluded that assurances from resettlement agencies on their own would not exempt an individual from the travel ban.
The State of Hawaii, along with 15 other states and the District of Columbia, challenged the administration’s narrow interpretation of the Supreme Court’s ruling regarding family members and refugees. The exclusion of grandparents in particular had become a public flash point. In his ruling, Judge Watson noted that “the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”
All indications are that the government will appeal. Attorney General Jeff Sessions stated that “[t]he Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the executive branch’s duty to protect the nation.”
Jackson Lewis will provide updates as they become available.
