Suspecting that employers seeking to hire foreign workers are not acting in the best interests of American workers, President Trump has requested the authority to establish fees for the adjudication of labor certifications and prevailing wage requests. These fees would be retained by the DOL.  By doing this, the Office of Foreign Labor Certification (OFLC), which handles PERM labor certification, LCAs for H-1B and H-1B1 and E-3 applications, H-2A and H-2B labor certifications and prevailing wage determinations, would eventually become self-funded (like USCIS). The President’s budget proposal states that such fees would “ensure that employers proposing to bring in immigrant workers have checked to ensure that American workers cannot meet their needs and that immigrant workers are being compensated appropriately and not disadvantaging American workers.”  The underlying assumption is that adding fees will protect American workers from displacement by foreign labor.

It is interesting to note that 37,000 fewer Cap H-1B cases were filed this year – down to 199,000 from 236,000 last year. In fact, this is the first time in the past five years that the number of applications has decreased.  Also this year, the filing fee for H-1B petitions was increased by $135 from $325 to $460, and beginning last year H-1B dependent employers (among whom are some of the largest IT consulting firms) were obliged to pay an additional $4,000 fee.  It has been reported that the decrease in Cap cases this year may be due to a reduction in cases filed by the large IT consulting/outsourcing firms. It is possible that the fee increases have been a factor and, if so, additional DOL use fees may be part of the Trump administration’s general plan to attempt to reduce abuse in the H-1B and green card process by cracking down on large IT consulting/outsourcing firms.  Adding DOL fees may achieve this goal, but consulting firms may simply adapt their business models and move more jobs off-shore.

The proposed fee amounts are not yet known. The expectation is that they would be set by regulation.  On the plus side for employers, expedited processing fees might become available.

Jackson Lewis attorneys will follow the budget negotiations and provide updates.

On May 25th, the 4th Circuit Court of Appeals upheld the lower court’s injunction in International Refugee Assistance Project v. Trump blocking President Trump’s revised travel ban.  The 4th Circuit found that the ban likely violated the First Amendment because it was based in religious animus.  Attorney General Jeff Sessions vowed to appeal that decision to the Supreme Court.  The Administration now has done that.

While the Supreme Court is unlikely to hear the case before the fall since special summer sessions of the Supreme Court are rare, the Government has asked for an emergency stay of the current injunction so the travel ban can go into effect while awaiting a fall hearing. It would take five votes from the now nine justices to grant a stay of the injunction.  To grant a stay, the justices would have to decide that:

  • There is a “reasonable likelihood” that four justices would agree to hear the case (it takes only four votes to grant certiorari);
  • There is a “fair prospect” that a majority of the justices would find that the circuit court’s ruling was incorrect; and
  • There will be “irreparable harm” if the stay is not granted.

The Government has also asked the Supreme Court to stay the injunction granted by the District Court in State of Hawaii v. Trump.  That case is currently on appeal in the 9th Circuit and the ruling could come out at any time.

Because the travel ban case involves legal questions about immigration, executive authority and First Amendment religious freedom, it is not clear how the Court would split – nor is it clear how Justice Gorsuch would rule.

At this point, the Supreme Court will likely ask the below-plaintiffs to respond quickly to the Government’s request before making a ruling on the emergency request for a stay.

If the Supreme Court were to grant a stay of the injunctions in both International Refugee Assistance Project and State of Hawaii, the travel ban would go into effect.

If you have questions about how the lifting of the injunctions could affect travel and business plans, please contact your Jackson Lewis attorney.

The Temporary Protected Status (TPS) program for Haitians will be extended an additional six months, until January 22, 2018, Secretary of Homeland Security John F. Kelly has announced. While in TPS, individuals are protected from deportation and they may obtain employment and travel authorization.

Approximately 60,000 Haitians in the United States are enrolled in the TPS program. The program for Haiti started after an earthquake hit the country in 2010. TPS designations usually are granted in six- to 18-month cycles that can be renewed indefinitely. Kelly stated the extension “should allow Haitian TPS recipients . . . time to attain travel documents and make other necessary arrangements for their ultimate departure from the United States….” Kelly said that “if [the country’s] recovery . . . continues at pace – [it] may not warrant further TPS extension past January 2018.”

TPS allows individuals to remain in the United States when conditions in their home country (such as armed conflicts, environmental disasters, or epidemics) temporarily prevent their safe return. TPS does not “lead” to permanent residence, but an individual with TPS is not prevented from finding another way to remain by applying for nonimmigrant status or filing for adjustment of status based upon an immigrant visa petition, for instance. Other countries currently designated for TPS include: El Salvador, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. On May 21, 2017, TPS for Guinea, Liberia, and Sierra Leone was terminated after eight months’ advance notice.

Individuals in TPS status are authorized to work with an Employment Authorization Document (EAD). EADs for individuals in TPS status include a category code “A-12” or “C-19.” Employers and employees affected by this DHS announcement should begin planning now for the possibility that TPS status for Haitian nationals will expire on January 22, 2018.

Jackson Lewis attorneys will continue to monitor this situation.

Those on TN “visas” and the employers who rely on them can breathe a sigh of relief— for now. While President Donald Trump has issued his recent notice to Congress of his intent to begin the process of renegotiating NAFTA, TNs have not as yet emerged as a focus of the discussions on the NAFTA renegotiation.

Trump made numerous critical statements about NAFTA on the campaign trail, calling it a “disaster” for its effects on U.S. workers and companies, despite the fact that states that voted for Trump send more exports to Mexico and Canada than those that voted for Hillary Clinton. On April 27th, Trump announced that, after conversations with President Enrique Peña Nieto of Mexico and Prime Minister Justin Trudeau of Canada, he was convinced to at least try to renegotiate NAFTA before scrapping it. Since then, Robert Lighthizer was confirmed as the 18th U.S. Trade Representative and he has taken the first step in that renegotiation process.

In a short letter, Lighthizer gave official 90-day notice to Congress that the Administration intends to renegotiate the NAFTA treaty. During the 90-day period, Lighthizer, not known as a doctrinaire free-trade proponent, will consult with Congress to define the United States negotiating position. Negotiations could begin in mid-August.

NAFTA was negotiated 25 years ago. According to Lighthizer, NAFTA has benefited some U.S. economic sectors, including agriculture, investment services, and energy, but needs to more directly address digital commerce, intellectual property, labor, and environmental matters. These gaps were addressed by the Obama Administration in the Trans-Pacific Partnership (TPP), which included the U.S., Mexico, and Canada. Trump pulled out of the TPP on the first day of his Administration. Lighthizer hopes to retain NAFTA as a three-way deal, but Trump has made it clear that if the negotiations do not go his way, pulling out, and/or negotiating bi-lateral agreements are still on the table.

Canada and Mexico are both happy to renegotiate NAFTA, to update it and to address their own concerns about certain provisions. Tom Donohue, President and Chief Executive of the U.S. Chamber of Commerce, stated, “If we all do our jobs well, the result will be a stronger agreement that spurs economic growth and job creation, not just in the United States, but across North America.” But there are members of Congress, such as Representatives Richard Neal (D-Mass.) and Bill Pascrell Jr. (D-N.J.), who are disappointed in this renegotiation tactic because they believe NAFTA “needs fundamental reform.”

Jackson Lewis attorneys will continue to follow NAFTA’s revamping and provide updates.
 

President Donald Trump’s own statements and deference to the Executive regarding travel ban Executive Orders are again the focus of oral arguments before the U.S. Court of Appeals for the Ninth Circuit. On May 15, 2017, in State of Hawaii v. Trump, the Ninth Circuit heard arguments for and against the President’s revised travel ban Executive Order (EO).  In February, the same circuit had denied the government’s request to reinstate the initial travel ban EO, which had been blocked by a lower court.

This panel, which included Bill Clinton-appointees Judges Ronald Gould, Richard Paez, and Michael Hawkins, questioned both sides aggressively. Judge Paez suggested that too much deference to the Executive could lead to situations like the now-discredited internment of Japanese-Americans that was upheld by the Supreme Court in Korematsu v. United States in 1944.  Acting U.S. Solicitor General Jeffrey Wall, who a week earlier had defended the travel ban in the Fourth Circuit Court of Appeals, responded, “You’re not anywhere approaching Korematsu.”

Judge Hawkins asked if the President had ever renounced his statements regarding a “Muslim ban.” Wall asserted the President’s view on the topic had evolved. Neil Katyal, representing the plaintiffs, said there had never been a renunciation, noting that Trump’s campaign website had featured a news release that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States” that “just happened to disappear moments before the Fourth Circuit argument last week.”

Judge Gould suggested that statements from the Attorney General and the DHS Secretary supporting the Executive Order as a necessary response to national security threats might outweigh any possible anti-Muslim motive on the President’s part. Katyal disagreed. When he also pointed out that the judges were bound in some respects by the earlier Ninth Circuit opinion, Judge Paez, reported to be the most liberal judge on the panel, responded, “You read a little more into that case than I did.”

In the earlier en banc hearing in the Fourth Circuit Court of Appeals, International Refugee Assistance Project v. Trump, some of the judges (13 in all, two had recused themselves) raised similar concerns. Judge Henry Floyd asked whether “anything other than willful blindness” should prevent the Court from looking behind the plain words of the Executive Order.

These two are not the only cases percolating through the courts on the travel ban. U.S. District Court Judge Tanya Chutkan in D.C. postponed ruling on an injunction in Pars Equality Center v. Trump, saying she was “inclined to agree with Plaintiffs that they are likely to succeed on the merits of their claims,” but there was a question about whether the harms were imminent since the travel ban is currently enjoined. She concluded, “In the event that both injunctions [in the Ninth and Fourth Circuits] are overturned, this court is prepared to issue a ruling without delay.”

The blocked travel ban may reach the Supreme Court, when Justice Neil Gorsuch will have a hand in the decision. Justice Gorsuch, who ascended to the Court in April, had previously criticized the Chevron deference doctrine in Gutierrez-Brizuela v. Lynch. Commentators say he leans toward limiting the executive branch’s authority to interpret federal statutes. However, as the Deputy Associate Attorney General in the Bush Administration, he defended the use of executive power in national security situations.

Canada will see a great deal more asylum applications this year as the Trump Administration shows signs of tightening U.S. asylum procedures.

Asylum seekers to the U.S. face about a 50-50 chance of rejection if they receive an asylum hearing before an immigration judge, according to a 2016 DHS report to Congress. After President Donald Trump issued his Executive Order on Border Security and Immigration Enforcement Improvements (EO), however, getting to the hearing stage may be even less likely.

The Administration’s asylum policies are clear. Section 11 of the EO states: “It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” Additionally, Section 6 terminates “the practice commonly known as ‘catch and release,’ whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.”

When an individual comes to the U.S. border seeking asylum, CBP refers that individual for an interview with an asylum officer for a “credible fear” determination. In the wake of the EO, it has been reported that, in some cases, CPB is not making that referral and individuals are denied access to the process. It has also been reported that even those who successfully file asylum applications are denied bond or parole as they await hearings. This frustrates the individual’s ability to seek counsel and to prepare the proof needed to prevail at an asylum hearing.

The EO also has made its way into training materials for U.S. asylum adjudicators. In the past, if an asylum officer had “reasonable doubt” about an individual’s credibility, the officer erred in favor of a finding of “credible fear,” allowing a hearing. Government training materials now direct officers to err in favor of removal. In addition, while recognizing cultural factors can affect an applicant’s demeanor, officers are told not to consider those as “significant factors” when assessing credibility.

Notwithstanding the perception that asylum claims in Canada may have a higher likelihood of success compared to claims in the U.S., there is no shortage of difficulty for an applicant to Canada. Because physical presence at the Canadian border is necessary to assert the asylum claim, the route to Canada often is through the U.S. Under the 2005 Canada-U.S. Safe Third Country Agreement, however, refugees must seek asylum in the first country they enter. Therefore, refugees who make it to the U.S. are not eligible for asylum in Canada unless they have a Canadian “anchor relative,” is an unaccompanied minor, has Canadian documentation, or (under a public interest exception) could be subject to the death penalty in the U.S. or elsewhere. Some refugees, therefore, are in limbo. With no status in the U.S., many are attempting to avoid removal by making perilous journeys to Canada. The extraordinary story of this “New Underground Railroad” has been documented by Jake Halpern in his March 13, 2017, The New Yorker article.

While the Department of State’s Visa Control and Reporting Division had hoped it would not be necessary to include a cut-off date in the first preference category, that cut-off has come to pass. In its June 2017 Visa Bulletin, DOS states that, due to heightened demand, beginning on June 1, 2017, for both India and China, the priority date for the EB-1 visa category is backed up to January 1, 2012. The DOS anticipates that EB-1 visa numbers will become current again in October 2017.

China third preference (EB-3) with a June priority date of October 1, 2014, did not move, but is still ahead of China second preference (EB-2), which moved forward to a March 1, 2013, priority date. This “upside down” phenomenon will continue until the number of downgrades requested shifts the balance back. For India, in contrast, “upgrades” affect the wait. The EB-2 category moved forward to July 1, 2008, because of fewer than expected upgrades to that category.

Unless the system for establishing wait lines for employment-based immigrant visa is changed, market phenomenon will continue to control the priority dates.

The DOS is expected to announce the week of May 15 whether earlier “filing date” charts will be usable in June. If the filing date charts can be used, then those in the EB-1 category would still be able to file adjustment of status applications in June.

Please contact your Jackson Lewis attorney with any questions.

 

Secretary John Kelly of the DHS has announced the establishment of the Victims of Immigration Crime Engagement Office (VOICE). The Office will enable victims or witnesses of crime allegedly perpetrated by illegal aliens to:

Victims’ rights organizations, both governmental and otherwise, are not new. Indeed, a database solution (Victim Information and Notification Everyday or VINE) used by most states was introduced in 1994 to allow crime victims and other concerned citizens to check on an offender’s custody status.  VOICE and VINE-DHS simply focus on crimes committed by undocumented aliens and provide immigration-related advice to crime victims.

From the earliest days of his campaign, President Donald Trump focused on the victims of crimes committed by undocumented aliens. He spoke of Mexican criminals crossing the border and, in his February 2017 speech to a Joint Session of Congress, referred to victims “who have been ignored by our media, and silenced by special interests” before introducing the family members of several of them.

VOICE was officially established in Trump’s Executive Order on “Enhancing Public Safety in the Interior of the United States.”  Section 13 of that Order directs ICE to establish an office “to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.” The Order also focuses on transparency with the “American public” and establishes quarterly reports “studying the effects of the victimization by criminal aliens” and reporting the immigration status of all incarcerated and convicted aliens. Section 14 of the Order, perhaps to allow dissemination of personally identifiable information, states that to the extent lawful, individuals who are not U.S. citizens or green card holders should be excluded from certain privacy protections. The President’s Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (aka, the “Travel Ban” Order) also calls for reports and data collection to be made publicly available regarding “any . . . information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign national charged with major offenses.” These public reports are perhaps a reinvention of the late-19th and early-20th century “big city” police practice of breaking down crime statistics by national origin.

While VOICE was established to help and serve the needs of crime victims and their families, protestors reportedly attempted to flood the website with reports of alien/UFO activity during the first days of the VOICE “hotline.”

 

To evaluate terrorism or national security-related ineligibilities of visa applicants, the Department of State has requested emergency review and public comment on a new rule on the collection of additional information from some visa applicants.

The proposed rule would “institutionalize” and expand Secretary Rex Tillerson’s “extreme vetting” directive.

The new or expanded areas of inquiry in the proposal are:

  • 15 years of travel history (including domestic travel in the country of nationality if it was under control of terrorist organizations) and sources of funding for travel;
  • 15 years of address history;
  • 15 years of employment history;
  • All passport numbers and country of issuance;
  • Names and dates of birth of siblings, children, and current and former spouses or civil or domestic partners;
  • 5 years of social media platforms and identifiers; and
  • 5 years of phone numbers and email addresses.

Requests would be sent by email or delivered in writing or orally during the visa interview. The proposed rule states:

  • Consular officers will not request user passwords or “attempt to subvert privacy controls” on social media platforms;
  • Data collection will not be used to discriminate or deny visas “based on applicants’ race, religion, ethnicity, national original, political views, gender or sexual orientation”; and
  • Additional requests will likely affect only 0.5% or approximately 65,000 visa applications annually.

Although DOS has estimated the number of applicants who will be affected by the proposed rule, no particular subsets of applicants are identified. Consular officers will have the discretion to decide, based upon “the circumstances of a visa applicant, a review of the visa application, or responses in a visa interview [that] indicate a need for greater scrutiny.” They also will have the discretion to grant visas even if all of the requested information cannot be supplied upon determining that the applicant has a “credible explanation” for the failure and that there is enough other information to make a decision about eligibility.

 

In a press release, the European Commission (EC) has announced, “[I]n view of the significant progress achieved during the last year and the positive momentum of ongoing work, the temporary suspension of visa waivers for nationals of Canada and the United States would be counterproductive at this moment and would not serve the objective of achieving visa-free travel for all EU citizens.”

The EC noted that in recent months, discussions with the relevant U.S. entities had “intensified” and that a process has begun that would move Bulgaria, Croatia, Cyprus, Poland, and Romania into the Visa Waiver category. Stressing time sensitivity, the EC hopes to have a path defined and ready to be endorsed at the EU-U.S. Justice and Home Affairs Ministerial Meeting scheduled for June 2017.