President Donald Trump’s revised Executive Order with its revised travel ban is scheduled to become effective just after midnight on March 16. While the revised Order regarding the travel ban is a bit of a retreat from the original, states have wasted no time trying to block the Order and hearings in two of these cases are scheduled for March 15.

The State of Hawaii was the first to file, arguing that the new E.O. has the same legal infirmities as the original. Hawaii provides evidence in more than 10 numbered paragraphs of alleged discriminatory statements made by Trump and his associates during and after the presidential campaign as proof that the E.O. is still a Muslim ban. Hawaii’s brief also outlines the chaos that followed the original E.O. and provides leaked intelligence reports as proof that there is no rational basis for the ban and that it is therefore unconstitutional.

Washington State Attorney General Bob Ferguson has asked that the previously granted injunction against President Trump’s original travel ban be applied to the revised ban. That request has been joined by California, Maryland, Massachusetts, New York, and Oregon.

Either of these cases could end up back in the Ninth Circuit Court of Appeals.

The ACLU, the National Immigration Law Centre, the Hebrew Immigrant Aid Society (HAIS), and a number of named plaintiffs also will have their motion to block the travel ban heard by a U.S. District Court in Maryland on March 15. This case focuses on the plight of refugees and individuals from the six countries who are in limbo abroad.

While the fate of the revised E.O. remains in question, non-immigrants from the six affected countries who would have to apply for new visas abroad may wish to reconsider their travel plans.

Aiming to reform and reduce fraud and abuse in the H-1B and L-1 visa programs, bipartisan bills have been introduced in both Houses of the Congress. Outsourcers are the top users of H-1B visas. These companies are known to flood the H-1B visa lottery and make it more difficult for other companies to obtain the H-1B visas they need to recruit and maintain top talent. Outsourcers have brought foreign nationals to the U.S. on these visas to be trained by the U.S. workers they are destined to replace. In light of this, other perceived abuses, and President Donald Trump’s promises to protect U.S. workers, reform bills are proliferating in Congress.

The H-1B and L-1 Visa Reform Act is a comprehensive bipartisan bill introduced in the U.S. Senate by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) with co-sponsors Bill Nelson (D-Fla.), Richard Blumenthal (D-Conn.), and Sherrod Brown (D-Ohio). This bill is a companion to another bipartisan bill introduced in the House of Representatives on March 2 by Representative Bill Pascrell, Jr. (D-N.J.) with co-sponsors Dave Brat (R-Va.), Ro Khanna (D-Cal.), and Paul Gosar (R-Ariz.). The sponsors of the House bill represent a particularly broad political spectrum from Tea Party members (Brat and Gosar) to the son of Indian immigrants who worked in the Obama Administration (Khanna) – perhaps an indication that momentum is building for this bill that would overhaul the H-1B and L-1 programs.

The “Grassley-Durbin-Pascrell” line of bills focus on outsourcing and the displacement of U.S. workers. The bills would:

  • Require employers to make a good faith effort to recruit U.S. workers by instituting a pre-application, 30-day job posting requirement;
  • Prohibit large companies from hiring H-1B workers if more than 50% of their employees are on H or L visas and prohibit restructuring to avoid the 50%-threshold;
  • Eliminate the random H-1B lottery and replace it with an allocation system that prioritizes those with the highest salaries and those with advanced U.S. STEM degrees;
  • Prohibit replacement of U.S. workers by H-1B or L visa holders for 180 days before and after hire;
  • Require a waiver to outsource H-1B and L-1 workers to other employer sites;
  • Raise H-1B wage requirements and establish L-1 wage requirements;
  • Redefine specialized knowledge to limit L-1B eligibility;
  • Clarify that a “specialty occupation” requires an actual bachelor’s degree – eliminating eligibility based upon equivalency evaluations;
  • Ensure that intercompany transfers do not involve shell corporations;
  • Eliminate the B-1 in lieu of H-1B visa category; and
  • Provide more authority for DHS and DOL to investigate fraud and abuse by sharing information and instituting higher penalties.

The bills also would protect H-1B and L-1 employees by:

  • Limiting H-1B status to three years, unless the beneficiary has an approved I-140 immigrant visa petition (thereby promoting Green Card sponsorship);
  • Requiring employers to provide petition or visa beneficiaries with all documentation filed on their behalf with the DHS and DOL – redacting only sensitive financial or proprietary information; and
  • Requiring USCIS and Consulates to provide beneficiaries with brochures outlining employer’s obligations and employee’s rights under the visa programs.

Changes of this magnitude obviously would affect those who use outsourcing services and require all employers to rethink their hiring practices and immigration strategies.

We will continue to follow these bills as they move through the legislative process and provide updates.

The “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order (E.O.), issued by President Donald Trump on March 6, 2017, suspends processing of visa issuance for individuals from six designated countries until June 14, 2017, 90 days from the E.O.’s effective date, March 16, 2017.  The E.O. will supersede the Executive Order issued on January 27, 2017, that banned travelers to the U.S. from seven countries, including Iraq. That much-criticized Executive Order was blocked by the courts.  To read the full article, click here.

USCIS has announced the temporary suspension of the Premium Processing service for all H-1B cases filed on or after April 3, 2017. This suspension applies to all H-1B cases filed – including those filed under the FY2018 regular H-1B cap, Master’s cap exemption, H-1B transfer cases, H-1B extensions, and cap-exempt H-1B filings.

The government, not indicating when the suspension would be lifted, noted only that this was intended to “help reduce overall H-1B processing times.” The suspension, according to USCIS, would allow officers to process long-pending petitions and prioritize the adjudication of H-1B extension of status cases that have been pending for nearly eight months.

The Premium Processing service is offered for fast-track processing in certain nonimmigrant and immigrant case filings for an additional government filing fee of $1,225. Premium Processing has been popular because it guarantees an initial adjudication within 15 calendar days of filing. Initial adjudications include the issuance of Requests for Evidence to require more information on the filing before a final adjudication can be made.

USCIS noted that petitioners still may request expedited processing (without an additional fee) if they can provide evidentiary proof that at least one of the following expedite criteria is met:

  • Severe economic loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Non-profit organization whose request is in furtherance of the cultural and social interests of the U.S.;
  • Department of Defense or national interest situation (these particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government);
  • USCIS error; or
  • Compelling interest of USCIS.

A determination for expedited processing is purely at the agency’s discretion, and expedited processing is rare.

This suspension’s most significant effect likely will be on initial H-1B filings for work with cap-exempt employers. These employers have not experienced timing restrictions with H-1B filings, since they are not subject to the “cap” and the inevitable visa lottery. Cap-exempt employers generally can sponsor employees throughout the year, and they benefit from use of the Premium Processing service when employees are needed with little notice. This suspension will require careful planning on the part of cap-exempt employers.

Expect H-1B cap receipt notices by the end of June 2017, and adjudications throughout the summer of 2017.

If you have any questions about your upcoming H-1B filing, please contact the Immigration Practice.

While the U.S. travel, tourism, and hospitality industries worry about deleterious effects from President Donald Trump’s clampdown on immigration, including the travel ban, the European Union has its own, similar concerns related to the possible temporary reinstitution of visa requirements on U.S. citizens entering the EU.

Under the U.S. Visa Waiver Program, nationals of 23 EU countries can enter the U.S. as tourists or business visitors for up to 90 days without a visa. But the Program does not include five of the EU member nations — Bulgaria, Croatia, Poland, Romania, and Cyprus. EU rules require equal treatment for all EU nations and, for years, the five excluded countries have been calling for full reciprocity.

Under EU rules, in April 2014, a warning was issued to Canada, Australia, Brunei, Japan, and the United States that if full reciprocity was not granted within two years (by April 2016), the EU would reinstate visa requirements for citizens of the noncompliant nations for a 12-month period. Australia, Brunei, and Japan have complied. Canada will comply by December 1, 2017. The U.S. is the only country that has not yet heeded the warning.

It has been almost a year since the April 2016 deadline set under the original EU warning and the EU Parliament, by a show of hands, urged adoption of strictures against the U.S. That vote, however, is not binding and EU Commissioners hope to resolve the issue at an upcoming EU-U.S. ministerial meeting scheduled for June 2017. What is the hold-up? The Commissioners fear that there would be grave economic costs to imposing visa requirements on U.S. tourists and business visitors even for a limited time.

We will continue to follow these negotiations and provide updates as they become available.

Members of Congress from states bordering Canada, the Northern Border Caucus, have focused on a section of President Donald Trump’s “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order directing DHS to expedite “the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States.” Calling it “unnecessary” on the northern border, representatives from New Hampshire, New York, North Dakota, Vermont, and Washington are concerned the system will lead to long lines and waits, interfere with commercial traffic, and damage tourism in their states.

In Buffalo, New York, there is bipartisan opposition to implementation of the biometric system. Representative Brian Higgins (D) believes the cost of implementation, $6.5 billion, will bring it to a halt when it comes to Congress for funding. In fact, that was where a similar proposal died two years ago. Representative Chris Collins (R) expressed particular concern about a reduction in sports tourism – reducing fan attendance at Buffalo Bills football and Buffalo Sabres hockey.

Because there is already a joint biometric entry-exit partnership agreement in effect between the United States and Canada, the Beyond the Border Action Plan, the Caucus has asked that the Administration do a careful cost-benefit analysis and coordinate with the Canadian government before instituting a costly enhancement.

The Canadian government, perhaps in reaction to Trump Administration policies, is considering legislation to expand preclearance at Canadian airports. Prime Minister Justin Trudeau suggested that Canadians would be better protected under the Canadian Charter of Rights if they cleared U.S. Customs on Canadian soil. But the measure would give CBP officers the right to question, or detain for hand-over to Canadian officials, any Canadian suspected of violating Canadian law. There is opposition. Canadian lawmakers are concerned about granting additional authority to CBP because the bill “does not address Canadians’ concerns about being interrogated, detained and turned back at the border based on race, religion, travel history or birthplace.”

Meanwhile, Canada is prepared to capitalize on the controversy swirling around the Trump Administration’s immigration policies. Trudeau has extended his welcome, and so has the City of Vancouver, just a two-hour flight from the Silicon Valley. Indeed, a Canadian start-up, True North, is introducing high-skilled foreign nationals and their companies to the advantages of having a back-up plan in Vancouver, providing introductions to Canadian immigration lawyers, and exploratory trips.

Please contact a Jackson Lewis attorney with any questions.

The food, construction, and healthcare sectors are concerned about fallout from the crackdown on immigration called for in Secretary John Kelly’s Implementation Memos, President Donald Trump’s travel ban, and possible new legislation aimed at reducing overall immigration by 50% within 10 years.

Those sectors suffer from labor shortages already and have relied on immigrants to fill jobs that U.S. workers reject. Some of these workers are authorized, but others are undocumented. According to a Pew study, in 2014, undocumented workers accounted for 17% of the workforce in agriculture, 13% in construction, and 9% in leisure and hospitality. In California, 45% of agricultural workers are undocumented.

Restaurants nationwide employ more than two million foreign-born workers and have difficulty finding line cooks, sous chefs, and servers. Restauranteurs expect the new deportation priorities will decimate the ranks of essential, lower-skilled workers as well. But that is just the beginning of the problem for restaurants. Deportations and arrests on farms would result in labor shortages and higher prices that ultimately hit customers.

The healthcare industry also has cause for concern. More than 10,000 physicians in the U.S. are from the seven countries listed in Trump’s travel ban — many of these physicians work in underserved, rural areas in order to remain in the U.S. In fact, one in five U.S. physicians is foreign born. At this time of year, medical school graduates are interviewing and being selected for competitive residency programs that are indispensable in providing care in the foremost teaching hospitals in the U.S. If hospitals choose foreign-born graduates, they cannot be sure that visas will be available. Dr. Michael F. Collins, Chancellor of the University of Massachusetts Medical School, said: “It seems a shame to me that students who have completed their studies and done their work and are attractive applicants would not be [selected] because of an uncertainty cast by the executive order . . . . And it would seem a shame to me that the next Nobel Prize winner wouldn’t be offered a spot because of this order.”  The anticipated revised travel ban order may help to cure this.

Trump has promised to promote economic growth that depends, in part, upon boosting the number of workers who are working productively. Pew studies show that with a reduction in immigration, the working population in the U.S. would decrease due to aging and lowering birth rates.  More recently, he said that he might shift his immigration strategy to grant legal status to millions of undocumented immigrants. If realized, this may be an opportunity for him to live up to his promise of promoting economic growth by increasing the number of workers in the U.S.

Petitions for new H-1B visas are eligible to be filed on April 1, 2017, for federal FY 2018 beginning October 1, 2017. There are a limited number of new H-1B visas each year (65,000 and an additional 20,000 for foreign nationals with a U.S. Master’s degree or higher), which historically is used up within days of the start of the filing period. Last year, 236,000 applications were filed for the 85,000 slots. Now is the time to review your hiring needs.

Given the changing immigration landscape, you should also think about whether you want to file H-1B petitions for foreign students working on Optional Practical Training (OPT) and for employees working in TN or other treaty-based statuses who might be affected by upcoming changes and who you wish to retain.

There are considerable pre-filing requirements, so it is important to get started in order to meet the April 1st deadline.

 

Following recent ICE arrests of 680 individuals in the Los Angeles, Chicago, Atlanta, San Antonio, and New York City areas, Senators Catherine Cortez Masto (D-Nev.), Richard Durbin (D-Ill.), and Tammy Duckworth (D-Ill.) introduced a bill to nullify the effect of President Donald Trump’s Executive Order, “Enhancing Public Security in the Interior of the United States.”  The E.O. “makes the vast majority of unauthorized individuals priorities for removal and aims to withhold critical Federal funding to sanctuary cities.”

The bill was introduced on February 16, the same day that thousands of immigrants nationwide, naturalized citizens and undocumented workers alike, staged a grassroots boycott to emphasize what it would be like to have a “Day Without Immigrants.” While cities did not “grind to a halt,” in certain areas, restaurants were closed, large numbers of children stayed home from school, and some nonunion construction sites were shut down.  Trump’s interest in deportation and reforming immigration laws has sparked concern not only among immigrants, but also among employers (including developers and contractors who often rely on immigrants to provide skilled labor especially in an expanding construction market).

DHS Secretary John Kelly stated that the enforcement actions were routine, not prompted by the Executive Order, and were aimed at those who posed public safety threats, “such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.”  He said that approximately 75 percent of those arrested were criminal aliens. Reports that the Trump Administration is considering mobilizing up to 100,000 National Guard troops to participate in a nationwide immigration enforcement effort have been vehemently denied by the White House. In Fact, a Memorandum signed by Kelly on February 17, but not yet reviewed by the White House, states that INA will make agreements with states to authorize “qualified officers or employees of the state…to perform the functions of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” There is no specific mention of National Guard troops or of state militia.

Trump’s Executive Order on enhancing security not only expands the definition of aliens who can be deported, but also threatens to deny federal funding to jurisdictions that do not cooperate with immigration enforcement efforts. These jurisdictions, known as “sanctuary cities,” have community policing policies that encourage all community members to cooperate with police to help solve and prevent crimes. One step in accomplishing this goal is to gain trust by pledging not to provide information about immigration status of non-criminals to immigration enforcement agencies. Senator Duckworth emphasized the importance of sanctuary cities and stated that “[o]rdering local officials to needlessly tear families apart is unacceptable—and it compromises public safety in communities across Illinois by fostering mistrust and suspicion between local law enforcement and the communities they serve and protect.” San Francisco and Boston have filed federal lawsuits seeking to bar the enforcement of this part of the Executive Order.