In the wake of the lowest number of H-1B visa petitions filed in five years (199,000), President Donald Trump has signed an Executive Order dubbed “Buy American, Hire American.” It is focused on reform of the H-1B non-immigration visa program, as well as the elimination of waivers and exceptions that are central to international trade deals.

The Order, signed on April 18, 2017, at Snap-On Tools in Wisconsin, directs the Departments of Homeland Security, Justice, Labor, and State to crack down on fraud and abuse in the immigration system, across the board, to create higher wages and rates of employment for U.S. workers.

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USCIS is reminding employers that if they are continuing to use a Form I-9 (“Smart Form”) that was downloaded between November 14 (when the form first became available) and November 17, 2016, they should download, save, and start using a new Form I-9, available at uscis.gov/i-9 .

There was a glitch in the software during those days that resulted in Social Security numbers being transposed. For example, the number 123-45-6789 entered in the Social Security number field might appear as 123-34-6789.

The USCIS is advising the following:

  • Employers should check to see if their employees’ Social Security numbers are incorrect;
  • If they are incorrect, employers should have their employees draw a line through the transposed number in Section 1, enter the correct number, and initial and date the change; and
  • Include a written explanation with the Form I-9 about why the correction was made in the event of an audit, citing to the USCIS announcement dated April 6, 2017, at: https://www.uscis.gov/i-9-central/whats-new .

If you have any questions about how to proceed, please contact your Jackson Lewis attorney.

A motion to dismiss a lawsuit challenging the U.S. Department of Homeland Security’s new rule governing the Science, Technology, Engineering, and Math (STEM) Optional Practical Training (OPT) program has been granted in part and denied in part. Washington Alliance of Technology Workers v. DHS, No. 1:16-cv-01170-RBW (D.D.C. Mar. 30, 2017). Judge Reggie B. Walton issued a brief order without any details, but explained the final order will be issued by April 30. We will report on the final order’s effect on the STEM OPT program when it is available.

The new rule extends to 24 months the time foreign students in F-1 status can work in the U.S. following completion of a STEM degree.

In August 2015, the court struck down the original rule allowing for extension of OPT work authorization for students on F-1 visas who have STEM degrees. The court found DHS unlawfully bypassed the notice-and-comment rulemaking process. However, the court paused the order to allow the agency to repair the administrative deficiency. On March 11, 2016, after a notice-and-comment period, the new STEM OPT rule went into effect. The new rule allows for a 24-month STEM OPT extension, seven months longer than the original rule.

The plaintiffs in the original suit, the Washington Alliance of Technology Workers, in June 2016 challenged the new rule and the DHS filed a motion to dismiss the suit.

Even if the new rule is upheld, the program could face other challenges. In a draft Executive Order that was leaked in January 2017, the Trump Administration stated it would like to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance and improve monitoring of foreign students.”.  The STEM OPT rule was instituted by an Executive Order followed by rulemaking and could be “reformed” or eliminated by Executive Order followed by rulemaking – a process that could take as little as 30 days to complete. We will report on developments related to STEM OPT and other programs.

Reforming the H-1B program “is an issue we are closely and carefully looking at,” Donald Trump had said during the campaign. This sentiment is shared by Congress, as evidenced by the slew of legislation proposed across both sides of the aisle.

Senator Dick Durbin (D. Ill.) first introduced a bill in 2007 to cure what he sees as the central problem — outsourcers abusing the system to obtain a very large portion of the limited number of H-1B visas. A decade later, in early March, Durbin reiterated this concern in a letter to President Trump. Durbin urges Trump to act quickly by way of Executive Order before the annual H-1B lottery because without Presidential action “outsourcers [would once again] secure the right to import tens of thousands of low-wage foreign guest workers to replace American workers.”

Going on the assumption that requiring outsourcers to pay higher salaries will eliminate the visa abuse and protect American workers, Congress is considering:

Outsourcing firms may have the most to lose if any of this legislation passes. The most recently available figures show that 13 outsourcing firms received one-third of all available H-1B visas. Outsourcing firms’ -20-year-old business models are being reconsidered to incorporate hiring more American workers, accelerating automation, and moving American jobs off-shore.

At the executive level, a draft Executive Order that would impose H-1B reforms was leaked in January, but it has yet to be signed. Significantly, on the first day of the annual H-1B lottery, U.S. Citizenship and Immigration Services announced that it will prioritize the detection of H-1B fraud and abuse through targeted site visits, with an emphasis on H-1B employers (i) whose information cannot be commercially verified, (ii) who are H-1B dependent, or (iii) who send employees to third-party worksites.

 

The H-2B visa program is used extensively in tourist locations to hire foreign workers for “the season” to do temporary nonagricultural work. There are 66,000 H-2B visas available annually – half for the summer season and half for the winter season. An exemption from the cap for “returning workers” was not renewed for fiscal year 2016. With no exemption and companies anticipating that the summer cap might be reached quickly, there was a 93% increase in the number of Labor Certifications filed with the Department of Labor for H-2B workers during the first week of January 2017. The summer season cap was reached on March 13. This was unprecedented. Companies that rely heavily on seasonal workers to bolster full-time staff during their peak seasons expect to be short of workers.

Representatives William Keating (D-Mass.), whose district includes Cape Cod, and Jack Bergman (R-Mich.) have introduced a bill in the House, “The Small Business Assistant Act of 2017,” that would exempt returning H-2B workers from the cap. If passed, the number of visas available may triple.

Hotels and restaurants on Cape Cod and other places that depend heavily on tourism dollars rely on H-2B foreign workers to do housekeeping, dishwashing, and grounds keeping. Others that depend upon the program include the crabbing industry on Maryland’s Eastern Shore, the Nantucket hospitality industry, Colorado’s skiing and recreational industries, the fishing industry in Alaska, and forestry operations and amusement and recreational parks nationwide.

Senator Thom Tillis (R-N.C.), with Senators Bill Cassidy (R-La.), Mark Warner (D-Va.), and former Senator Mikulski (D-Md.), introduced the “Save our Small and Seasonal Businesses Act of 2015,” also to reinstate the returning worker exemption. When seasonal businesses cannot open on time because they do not have enough foreign workers, their U.S. workers also are unemployed and the economies in these areas generally suffer. Senator Tillis stated that the bill would “continue to place a priority on both the American workforce and our local economies.” Even in Guam, the healthcare and construction industries are missing the H-2B visas they need.

As an interim measure, due to the time-sensitive nature of these visas, Senators have called on the USCIS to conduct an H-2B visa audit to ensure that all available visas actually have been utilized. Keating and close to 40 other Representatives have joined in that request.

Meanwhile, in Euskadia Inc. v. Kelly, No. 1:17-cv-00205, landscaping, construction, roofing, fencing and other companies have asked the U.S. District Court of the Western District of Texas to force the USCIS to continue to process their H-2B visa applications. The court found the plaintiffs were not entitled to preliminary injunctive relief. An amended complaint was filed on March 22. We will report on further developments.

Although it is not a surprise, the USCIS announced on April 7th that it reached the H-1B cap for fiscal year 2018 – both the regular cap and “Master’s” cap. As usual, the USCIS will reject and return filing fees for all unselected cap-subject petitions – unless any of those petitions are duplicate filings.

We do not yet know how many Cap H-1B petitions were received by the USCIS during the 5-day filing period.

The USCIS will continue to accept H-1B petitions that are not cap-subject to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

The Premium Processing suspension for any H-1B cases remains in effect.

For updates from the USCIS on the H-1B Cap Season, you may subscribe to email updates located on the H-1B Fiscal Year (FY) 2018 Cap Season.

 

In line with its focus on compliance and enforcement of existing laws, the Trump Administration has announced measures to “deter and detect H-1B visa fraud and abuse” and to protect American workers just as thousands of H-1B visa petitions are inundating USCIS Service Centers on April 3 (the beginning of the H-1B season for FY 2018).

On April 3, the Department of Justice reminded employers not to discriminate against U.S. workers, stating, “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.” Employers who discriminate against U.S. workers are those whose hiring practices favor H-1B workers. According to the DOJ, this might include a discriminatory preference for using outsourcing firms or terminating U.S. workers after they have trained their replacements who are on H-1B visas.

The same day, the USCIS announced that Fraud Detection and National Security site visits will be more targeted. The FDNS will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (companies which have a high percentage of H-1B workers as compared to U.S. workers); and
  • H-1B workers who will work off-site at another company or organization’s location.

USCIS will determine if employers might be evading their obligation to make a good faith effort to recruit U.S. workers before hiring H-1B workers if the companies are H-1B-dependent employers.

The USCIS also wants help from the public to ferret out abuse, offering an informational website, Combating Fraud and Abuse in the H-1B Visa Program, along with a robust “tip” line system to contact the enforcement agencies:

  • Individuals can submit tips on alleged violations and other information about possible H-1B fraud or abuse at REPORTH1BABUSE@USCIS.DHS.GOV;
  • Form WH-4 can be submitted to the Department of Labor’s Wage and Hour Division; and
  • Homeland Security Investigations (HIS) Tip Form can be submitted to ICE.

Earlier, on March 31, the USCIS published new guidance aimed at outsourcers and others who may be trying to bring in tech workers at lower salary ranges.  The guidance suggests that computer programmer positions are not “specialty occupations” requiring at least a bachelor’s degree in a specific field and, therefore, may not be eligible for H-1B visas. While this has always been a potential issue for programming jobs, the USCIS warns employers that it will subject those applications to more scrutiny, issuing more Request for Evidence notices (“RFEs”) and requiring more specific proof that the jobs offered are high skilled and analytical. Some outsourcers claim these measures would exclude only low-skilled workers on H-1B visas, not the high-skilled workers who are in short supply in the U.S.

We will continue to follow these DOJ and USCIS efforts.

 

President Donald Trump made cracking down on undocumented individuals a focus of his campaign. On January 25, 2017, he delivered on his promise by signing the “Enhancing Public Safety in the Interior of the United States” Executive Order, directing the federal government to withhold federal funding from states and localities with “sanctuary” policies. Close to 300 law professors have contended that this part of the E.O. is likely unconstitutional under the Tenth Amendment, among other laws.  Additionally, mayors of sanctuary jurisdictions, including Mayor Bill de Blasio of New York, have vowed to fight this directive in court, arguing that, contrary to Trump’s stated goals, sanctuary policies actually make jurisdictions safer, not “less safe.” Opponents of the E.O. cite studies to support this argument.

Since the E.O. was issued, there have been reports that sanctuary jurisdictions have been targeted for raids. The Trump Administration also released its first weekly “shame and blame” report listing jurisdictions that do not comply with detainers or have policies of non-cooperation with Immigration and Customs Enforcement (ICE).  Most recently, on March 27, 2017, Attorney General Jeff Sessions announced that Department of Justice grants would be withheld from sanctuary localities and that he might even claw back funds retroactively in part because “[c]ountless Americans would be alive today . . . if these policies of sanctuary cities were ended.”

California, New York, Illinois, Pennsylvania, Maryland, Florida, and Massachusetts are the states with the most to lose as they receive amount the largest grants for policing and economic development.  Boston Mayor Martin Walsh reacted to Sessions’ statement, saying the “threat of cutting federal funding from cities across the country that aim to foster trusting relationships between their law enforcement and the immigrant community is irresponsible and destructive.”  New York State Attorney General Eric Schneiderman issued guidance on how jurisdictions could maintain sanctuary policies without violating the Trump E.O. But sanctuary jurisdictions are walking a fine line as the Trump Administration tries to enforce compliance with its policies. In response, immigration advocates in New York City are asking the legislature to decriminalize certain low-level nonviolent offenses, such as subway turnstile jumping, so that undocumented immigrants would not be exposed to detainer and deportation on the basis of something that minor.

Meanwhile, ICE has issued a new Immigration Detainer Form that makes it easier for ICE to demand notification from local law enforcement authorities before a potential deportee is released and to detain such individuals for up to 48 hours so that ICE can take them into custody. Many sanctuary jurisdictions are particularly hesitant to hold individuals beyond their scheduled release times.

State Department Secretary Rex Tillerson has directed all consular chiefs to determine which populations of visa applicants should be subject to additional “extreme” vetting.  The March 15 direction is in response to President Donald Trump’s March 6 “Travel Ban” Executive Order and Presidential Memorandum on “extreme vetting.” The Memo directed the U.S. Attorney General and the Secretaries of State and Homeland Security to put appropriate protocols and procedures in place and “vigorously enforce all existing grounds of inadmissibility.”

Tillerson suggested the following new areas of inquiry:

  • 15 years of travel history;
  • 15 years of address and work history;
  • 5 years of phone numbers, email addresses, and social media handles; and
  • Names of siblings, children, or former spouses not listed elsewhere on immigration applications.

Later on March 15, the U.S. District Court in Hawaii blocked the newly revised EO.  On March 16, the U.S. District Court in Maryland, in a less sweeping order, also enjoined the 90-day travel ban on individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Consular officials subsequently were notified that “extreme vetting” would have to be suspended for visa applicants from the six countries in the travel ban.

Oddly, this means that only visa applicants from countries that have not been targeted by the new EO could be subject to “extreme vetting” and additional delays. The new vetting procedures will not directly affect individuals from countries eligible for the Visa Waiver Program, but applicants from Iraq, no longer included in the travel ban, could be subjected to “extreme vetting.”

Trump has stated that he would appeal the rulings of both the Hawaii and the Maryland District Courts. The government’s first step was to seek clarification of the Hawaii court’s ruling, basically asking it to bring its injunction in line with the Maryland court’s ruling – perhaps contemplating a consolidated appeal strategy. The Hawaii court refused. Meanwhile, the government has filed an appeal of the Maryland court’s ruling in the Fourth Circuit Court of Appeals. Final briefs on the appeal will be due on April 5, with a hearing to follow.

We will continue to provide updates as they become available.