Expectations are that the U.S. Supreme Court may decide soon whether to stay the injunctions blocking President Donald Trump’s travel ban. Meanwhile, the President has issued a Memorandum meant to amend and clarify the revised travel ban executive order.

The President declared that the 90-day travel ban and the 120-day ban on refugee admissions would not kick in until the injunctions were lifted. This is meant to ensure the bans remain “active” and to parry any legal argument before the Supreme Court that the case is moot (or soon will be moot) because the bans, which were meant to go in effect on March 16th, have already expired.

The White House also stated that when and if the injunctions are lifted or stayed, there would be a three-day (72 hour) grace period before the relevant provisions would go into effect. This is to “ensure an orderly and proper implementation of those provisions.”

Individuals from the six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) who could be affected and plan to travel soon should take particular note of the possibility of the three-day warning.

Jackson Lewis attorneys will continue to provide updates.

 

With his “Buy American, Hire American” Executive Order, President Donald Trump officially announced his intention to reform the H-1B visa program and the DOL and the USCIS are taking steps accordingly.

In April, the DOL announced it would be investigating violations of the H-1B visa program, “cautioning employers who petition for H-1B visas not to discriminate against U.S. workers . . . .”  While this typically means undercutting U.S. wages by hiring foreign workers at lower pay rates for the same work, details from Secretary of Labor Alexander Acosta on the DOL side of H-1Bs show that, beyond vigorous enforcement of laws related to the program, employers can expect:

  • More criminal referrals for fraud (e.g., petitioning for the individual to work in one job, then employing the person in a different role);
  • More civil investigations by Wage and Hour (e.g., regarding alleged wage disparity between U.S. workers and foreign workers);
  • Changes to LCA forms to create more transparency;
  • More coordination of enforcement among agencies to effectuate criminal referrals to the Office of the Inspector General and to avoid duplication of efforts;
  • More collaboration with DOJ and DHS to detect visa fraud; and
  • Publication of investigations and prosecutions to shame and promote compliance.

Penalties for violations of H-1B LCA regulations include civil monetary fines (up to $51,000 for willful violations), restricting access to additional H-1B workers and debarment, ordering payment of back wages, and federal criminal penalties (including imprisonment for interfering with an investigation).

Meanwhile, in response to a letter from Senator Charles Grassley, the DHS has stated that it is planning to issue new H-1B regulations and release updated guidance for the agency’s policy manual consistent with the President’s executive order, including suggesting reforms to “protect the interests of U.S. workers” and “improve the H-1B visa program.” The DHS already announced it would be conducting more targeted investigations in response to some highly publicized lay-offs of U.S. workers.  Lee Francis Cissna, Trump’s nominee for Director of the USCIS, already has a penchant for H-1B reform. He helped write the H-1B and L-1 Visa Reform Act sponsored by Senators Grassley and Dick Durbin. That bill focuses on enforcement and protecting U.S. workers by cracking down on alleged abuses by outsourcing firms, as well as giving priority to H-1B petitions offering higher wages, or to aliens with higher qualifications. It is important for employers to note that, during his confirmation hearing, Cissna stated that the “penalties are probably too low” for H-1B visa violations.

Jackson Lewis attorneys will continue to provide updates on changes in H-1B policies, regulations, and penalties as they become available.

Joining the Fourth Circuit Court of Appeals and using President Donald Trump’s tweets to support its decision, the Ninth Circuit Court of Appeals in Hawaii v. Trump has continued to block the revised travel ban.

Unlike the Fourth Circuit, the Ninth Circuit did not rule on constitutional grounds. The unanimous three-judge panel ruled on statutory grounds and held that the government did not show “sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.”

The Court opined that there was no showing that allowing the entry of individuals from the six banned countries and allowing the entry of refugees would be detrimental.

The Ninth Circuit, however, narrowed the scope of the Hawaii District Court’s injunction to allow the government to continue with its review of the vetting procedures in foreign countries – something that the Trump Administration had claimed was equally deleterious. The lifting of this part of the injunction could lead to more stringent vetting of visa applicants. The government has asked the Supreme Court to stay both the Fourth Circuit’s and the Ninth Circuit’s injunctions. We await the Supreme Court’s first word on these cases.

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.