Tag: Immigration

Report: New Internal Oversight Division within USCIS to be Established

The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.

Establishing this division follows changes Cissna recently made to the USCIS mission statement. That revised statement emphasizes ensuring that benefits are not provided to those who do not qualify, moving away from prioritizing customer (i.e., applicant) satisfaction.

A USCIS spokesman said the agency has no official announcement to make regarding any reorganization at this time, but did not deny such a division is being considered.

 

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.

The Four Pillars: Trump’s Immigration Plan

In his first State of the Union address, President Trump described four “pillars” to his immigration plan, with mixed reception. The pillars reinforce his campaign slogan to “Buy American, Hire American” and track with the immigration policy priorities he has previously outlined. These priorities include border security, interior enforcement and a merit-based immigration system.

The first two pillars address building a wall along the Southern border as well as a pathway to citizenship for certain undocumented foreign nationals presently in the United States, including about 800,000 young people (Dreamers) who were granted temporary status through the Deferred Action for Childhood Arrivals (DACA) program, now rescinded by President Trump.

The third pillar would end the diversity visa lottery (DV lottery). This program was established by Congress in 1990 and allocates 50,000 green cards to foreign nationals of countries with historically low U.S. immigration rates. Which countries are eligible can vary from year to year based on government-collected statistics as to how many foreign nationals have immigrated from those countries through other non-DV lottery programs. For example, in FY2018, most African countries were eligible, as were most European countries, except Great Britain. Countries that were not eligible included Pakistan, the Philippines, India, Mexico, Brazil, El Salvador, and Peru. The odds of being chosen are poor. Past data reveals about 14.5 million apply annually.

A common misconception, indeed one articulated by President Trump, is that the DV lottery program “randomly hands out green cards without any regard for skill, merit, or the safety of our people”. In fact, however, DV lottery participants must demonstrate that they meet certain educational or skilled work experience requirements in addition to clearing robust government background and security checks. Those selected in the DV lottery must be screened just like any other green card applicant – including family- and employment-based green card applicants. The process is arduous and can take months to complete. Security screenings include biometrics as well as name and fingerprint checks through multiple interagency government databases to identify potential criminal, national security, terrorism, organized crime, gang and other related issues. Applicants also must attend an in-person interview where they are again screened for potential red flags affecting admissibility.

The fourth pillar addresses family-based immigration and would limit it to immediate family members which include spouses and minor children. Referring to “chain migration”, President Trump stated that “a single immigrant can bring in virtually unlimited numbers of distant relatives.” This misconstrues current immigration law. The United States already limits family-based immigration. Family-based green cards are only available to spouses, children, parents and siblings (for U.S. citizens). Grandparents, aunts, uncles, cousins and other extended family members are ineligible. The number of family-based green cards are limited by annual quotas. For example, siblings of U.S. citizens who filed family-based petitions between 1994 and 2004 are only now current. In other words, the wait is long. Furthermore, sponsors of family-based green card applicants must also demonstrate that they have the financial means to support the intended beneficiary by signing a contract with the government agreeing to reimburse for any means-tested public benefit the beneficiary should receive, until the beneficiary has worked 10 years, becomes a US. citizen, dies or leaves the United States permanently.

U.S. immigration law is complex and a challenge to understand for those who aren’t regularly walking its trenches. For those curious about the Administration’s regulatory agenda, https://resources.regulations.gov/public/custom/jsp/navigation/main.jsp is a good place to start. Those interested in learning more about U.S. immigration facts can also access the American Immigration Council’s resources available at https://americanimmigration council.org/.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson.
More on Immigration at the National Law Review Immigration Page.

Trump Administration Releases Framework for Immigration Deal

The Trump Administration has released a new framework containing components of proposed immigration reform.

Not surprisingly, border security is at the top of the list and includes the following components:

  • New $25 billion trust fund for the (southern) border wall system
  • Funds for hiring more enforcement personnel
  • Immigration court reforms
  • Ending the “catch-and-release” policy and establishing an emphasis on the prompt removal of illegal border crossers
  • Ensuring the removal of criminal aliens, gang members, violent offenders and aggravated felons
  • Expedited removal for visa overstays

Legalization for DACA recipients and other DACA-eligible illegal immigrants is next:

  • Increase in the number of eligible individuals to 1.8 million (from 800,000)
  • Provision of a 10-12 year path to citizenship

Ending so-called “Chain Migration”:

  • Limit family sponsorship to spouses and minor children for U.S. citizens and Legal Permanent Resident sponsors
  • Exclude parents and other non-nuclear family members from sponsorship

Ending the Diversity Visa Lottery:

  • Reallocate the 50,000 diversity lottery visas to the family-based and employment-based backlogs. As of November 1, 2017, there were approximately 4 million applicants waiting for green cards, 112,000 are employment-based applicants.

This framework increases the number of “DACA-like” recipients but is otherwise similar to the principles that the Administration offered in October 2017 in exchange for DACA relief. The new proposal, however, does not include all of the earlier proposals such as requiring the use of E-Verify and eliminating federal aid to sanctuary cities.

It is reported that the Administration believes this framework could reach 60 votes in the Senate although its fate in the House is likely more uncertain. Due to the Administration’s DACA rescission in September 2017, Congress has only until March 2018 to find a solution for the future of the “Dreamers.”  More details about the framework are expected from the Administration soon.

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.
Read more immigration news at the National Law Review’s Immigration page.

Raise Your Hand If You’re Confused about I-9 Reverifications for Employees with TPS

Temporary Protected Status (TPS) is a humanitarian benefit available to foreign nationals who are unable to return to their home countries because of certain temporary conditions including ongoing armed conflict such as civil war, an environmental disaster like an earthquake, hurricane, epidemic, or other extraordinary conditions. During TPS designation, qualifying foreign nationals are not removable from the US and can obtain work authorization and travel permission.

The Department of Homeland Security (DHS) has recently terminated TPS for nationals of El Salvador, Haiti, Nicaragua, and Sudan but has granted a period of orderly departure to allow time for this population to wind up their affairs in the US. This has left employers in a quandary about which TPS holders remain able to work and how to comply with Form I-9 Employment Eligibility Verifications.

To help ease the confusion, the chart below illustrates TPS-designated countries, the dates by which beneficiaries were required to re-register and, for those who do re-register, how long their current Employment Authorization Cards (EAD) are automatically extended pending decisions of EAD renewal applications. The TPS termination dates for El Salvador, Haiti, Nicaragua, and Sudan are also included.

Country

Re-Registration Period Ends

EAD Auto-Extended Until

TPS End Date

El Salvador

03/19/2018

09/05/2018

09/09/2019

Haiti

03/19/2018

07/21/2018

07/22/2019

Honduras

02/13/2018

07/04/2018

–

Nepal

12/27/2016

06/24/2017

–

Nicaragua

02/13/2018

07/04/2018

01/05/2019

Somalia

03/20/2017

–

–

South Sudan

11/20/2017

05/01/2018

–

Sudan

12/11/2017

05/01/2018

11/12/2018

Syria

09/30/2016

03/31/2017

–

Yemen

03/06/2017

09/03/2017

–

As reflected in the chart above, sometimes DHS issues a blanket automatic extension of the expiring EADs for TPS beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. The automatic extension periods are available to those TPS beneficiaries who timely re-register and apply to renew their EADs.

Although an employer cannot specify which documents an employee can present in connection with the I-9 Employment Eligibility Verification process, TPS beneficiaries with automatic EAD extensions may present an expired EAD bearing the C19 eligibility code along with a Form I-797C Notice of Action indicating the eligibility category code A12 or C19. The codes need not be the same.

The M-274 Handbook for Employers is an excellent resource in determining how to complete the Form I-9 for those employees with automatic EAD extensions. It specifies that:

“For a current employee, update Section 2 of Form I-9 with the new expiration date as follows:

  • Draw a line through the old expiration date and write the new expiration date in the margin of Section 2;

  • Write EAD EXT in Section 2;

  • Initial and date the correction.”

For TPS beneficiaries, the new expiration date should correspond with the respective date as noted in the chart above. An employee whose employment authorization is automatically extended along with his/her EAD may cross out the “employment authorized until” date in Section 1, write the new expiration date as reflected in the chart, initial and date the change.

A new employee may present the expired EAD and Form I-797C Notice of Action indicating USCIS’s receipt of the employee’s timely filed renewal application. When completing Section 1, the employee should enter the corresponding date from the chart in the “employment authorized until mm/dd/yyyy” field.

When completing Section 2, the employer should enter into the Expiration Date field the date the automatic extension period expires, not the expiration date on the face of the expired EAD. The employer should enter the receipt number from the I-797C Notice of Action as the document number on Form I-9. Note that reverification is required when the employee’s automatic extension ends.

While an employer is not required to be an expert in I-9 documents and review, having access to reliable resources comes in handy and will take you to the head of the class.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP, All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson (US) LLP.

Foreign Entrepreneurs – The Facts

The United States has long been attractive to foreign entrepreneurs due to the county’s historically open marketplaces and tolerance for new ideas and new products. Foreign entrepreneurs have come to the United States in many different ways; however, there is still no direct “entrepreneur visa” or immigration status for entrepreneurs looking to come to the United States in order to grow a U.S.-based business enterprise. On this account, oftentimes foreign entrepreneurs will run into roadblocks while in the United States as they seek to both grow their businesses and obtain and maintain lawful immigration status.

More so, with global competition growing, the United States is no longer the default stop for the best and the brightest to set up their shops—in fact, numerous studies have shown that a growing number of would-be entrepreneurs are choosing to start and run their business elsewhere due to financial and societal incentives. Other countries are seeking to prevent their native entrepreneurs from leaving as nations such as China and India set up policies to dissuade would-be entrepreneurial immigrants from leaving their home countries.

Legal Avenues for Foreign Born Entrepreneurs

Entrepreneurial Parole

On January 17, 2017, the Department of Homeland Security (DHS) published a final rule establishing a parole program for international entrepreneurs seeking to improve the ability of certain startup founders to remain in the United States legally in order to grow their companies and help create new jobs for U.S. workers.

On July 11, 2017, less than a week before the final rule was set to take effect, DHS delayed the implementation of the rule, foreshadowing that it would seek to rescind the rule altogether pursuant to an Executive Order (EO) signed by the President on January 25, 2017. DHS originally estimated that approximately 3,000 entrepreneurs will be eligible to apply under this rule annually. If the rule is allowed to take effect, these entrepreneurs would then be granted a stay of up to 30 months, with the possibility of an additional 30-month extension if they meet certain criteria, in the discretion of DHS.

As there are currently limited visa options for international entrepreneurs, this rule would create an avenue in our immigration system for innovators and allow entrepreneurs the opportunity to establish new businesses in the United States, contribute to the economy, and help maintain the United States’ competitive edge in the world marketplace of ideas.

E Visas

Some entrepreneurs may be eligible for an E visa, which is a visa category reserved for nationals of certain countries that have treaties with the United States. Specifically, there is the E-1 and the E-2 visa category—E-1s can be for foreign nationals who conduct “substantial trade” between the United States and their home country, while E-2s can be for foreign nationals who come to the United States in order to develop and direct the operations of an enterprise in which they have invested a “substantial amount” of capital. Also, the E visa applicant must control at least 50% of the company.

E visas are nonimmigrant visas, meaning that they are by nature “temporary”; however, there is no limit to the amount of extensions an applicant may be eligible for, and, in certain instances, it can lead to permanent residence (i.e., a green card).

H-1B Visas

Although most people probably don’t think of the H-1B visa as an “entrepreneurial visa,” with proper planning and advice the H-1B visa category can be a viable option for an entrepreneur looking to start their own company and invest in the United States. For USCIS to grant an individual an H-1B visa they must demonstrate that there is a valid “employer-employee” relationship; this can be an issue with entrepreneurs since they are more often than not their own bosses and therefore will have trouble establishing the requisite employer-employee relationship between themselves and their companies. Even so, one option for the entrepreneur would be to set up an independent board of directors for their company that can exercise control over the entrepreneur’s employment. This requires extremely careful planning and oversight and the assistance of competent counsel. Also, the fact that H-1B visas are statutorily capped at 85,000 per year makes this visa category less appealing for entrepreneurs.

EB-5 Investor Visas

The EB-5 program is a statutory program that allows for investors to obtain conditional permanent resident status (and eventually full permanent resident status) based on a qualifying investment of between $500,000 and one million dollars. The required investment amount is dependent on the type of program in which the investor is participating (whether it be participating in a USCIS-designated regional center, investing in Targeted Employment Area, or direct investment in a new or existing company); however, in any scenario, in order for the investor to eventually obtain their full-fledged permanent residency, they must be able to create at least 10 U.S. jobs within two years. If the investment is successful after the initial 2 year trial period, then the investor may apply for their permanent green card with USCIS.

EB-2 National Interest Waiver

Certain foreign nationals may be eligible for permanent residency pursuant to the National Interest Waiver (NIW) provision of the Immigration and Nationality Act (INA) if they either: (1) are members of the profession holding an advanced degree (or their equivalent); or (2) possess exceptional ability in the arts, sciences, or business, and they will “substantially benefit the national economy, cultural or educational interests, or welfare of the United States.” In most cases, such workers are also required to obtain a Labor Certification from the Department of Labor (DOL) prior to filing their petition with USCIS; however, the INA gives USCIS the authority to waive the Labor Certification requirement, in their discretion, if it is determined that it would be in the national interest to do so. More so, NIW cases allow for so-called “self-petitioners” (meaning that no job offer or employee sponsor is required), which is uncommon in U.S. immigration law. These features therefore make this category extremely desirable as it allows for both skipping the tedious and pedantic Labor Certification process and for petitioning without the sponsorship of an employer (something that is ideal for an entrepreneur seeking to start their own business in the United States).

When a foreign national’s work will be deemed to be in the “national interest” is subject to a three-part test, which includes: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.  This new standard—which was announced in early 2017—is less demanding than the old standard, but will still undoubtedly provide challenges to immigrant entrepreneurs seeking to utilize the category.

Conclusion

As seen above, there are several solid options for immigrant entrepreneurs seeking to enter the United States in order to start, manage, and run their own businesses. However, petitioning the United States government for any sort of immigration benefit is a complex process which requires competent counsel, proper planning and close oversight.

 

© Copyright 2018 Murtha Cullina
This post was written by Michael J. Bonsignore of Murtha Cullina.
Read more on Immigration Matters at the NLR’s Immigration Page.

Administration Clarifies and Limits Searches of Electronic Devices at Border

On January 4, 2018, U.S. Customs and Border Protection (CBP) issued Directive 3340-049A, governing border searches of electronic devices. CBP’s new directive updates and provides several improvements over the agency’s initial directive, published nine years ago, regarding the policies and procedures for border searches of electronic devices conducted in furtherance of CBP’s mission. CBP has implemented several key changes that aim to provide travelers with more clarity and protections regarding the procedures for electronic device searches; however, the numerous exceptions included in the new directive may, in practice, allow CBP to bypass some of these protections. Ultimately, the new directive serves as an upgrade over CBP’s initial directive, provides additional protection for travelers by incorporating a reasonable suspicion standard for most “advanced” searches, and provides specific procedures to be followed when travelers assert the attorney–client privilege or the attorney work product doctrine.

Under the new directive, CBP assures travelers that it will protect the rights of individuals against unreasonable search and seizure and ensure privacy protections while accomplishing its enforcement mission. However, it is important to note that travelers carrying electronic devices are guaranteed few protections limiting CBP’s searches and seizures of their devices. CBP regards such searches as integral to protecting border security and aiding in the detection of evidence relating to terrorism and other national security matters, human and cash smuggling, contraband, and child pornography.

New Directive Applies Only to CBP

Importantly, the directive applies only to CBP. Thus, any border search conducted by agents of U.S. Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI) is not subject to the protections of the directive. ICE and HSI are not included in the directive and those agencies have not issued a new policy or directive for their searches.

What Is an Electronic Device?

The directive governs searches of electronic devices conducted by CBP at the physical border, functional equivalent of the border, or the extended border. An “electronic device” is defined as “any device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players.”

What Content May Be Searched?

Pursuant to the directive, border searches of electronic devices are limited to “only the information that is resident upon the device,” and officers are prohibited from intentionally using the device to access information that is solely stored remotely. To avoid access to information stored remotely, officers will either request that the traveler disable network connectivity or, where warranted by national security, law enforcement, officer safety, or other operational considerations, the officers themselves will disable network connectivity.

New Distinction Drawn Between Types of Searches

The new directive makes a distinction between “basic” searches, which may be conducted without suspicion, and “advanced” searches, which require officers to have reasonable suspicion of activity in violation of the laws enforced or administered by CBP. The directive also carves out an exception to allow for advanced searches without reasonable suspicion when national security concerns exist. For example, a national security concern may arise in scenarios involving a national security-related lookout in combination with the presence of an individual on a government-operated and government-vetted terrorist watch list. During a basic search, an officer may examine the electronic device and review and analyze information encountered at the border. During an advanced search, an officer connects external equipment to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.

Protections for the Attorney–Client Privilege and Attorney Work Product Doctrine

The new directive includes detailed procedures for searches that may involve the attorney–client privilege or the attorney work product doctrine. However, CPB’s detailed procedures are not applicable to other sensitive material, such as medical records or business confidential information. When an individual asserts the attorney–client privilege or the attorney work product doctrine, the CBP officer will seek clarification—in writing, if practicable—from the individual asserting privilege to assist CBP in identifying the privileged information. While the directive instructs officers to handle medical records and other work-related or business confidential information in accordance with applicable federal laws and CBP policies, it does not require officers to follow the detailed procedures set forth for searches involving attorney–client privilege or the attorney work-product doctrine, and no new protections have been added for these other types of sensitive material.

Travelers Explicitly Required to Provide Passcodes and Encrypted Information

With regard to passcodes or encrypted information, travelers are obligated to present electronic devices and their contents in a condition that allows inspection. If an officer is unable to complete an inspection because the device is protected by passcode or encryption, the officer may detain the device pending a determination as to its admissibility, exclusion, or other disposition. Additional consequences, such as travel delay or denial of entry may potentially arise if a traveler refuses to provide passcodes or encrypted information.

Detention of Electronic Devices

Searches may take place on-site or off-site and are to be completed as expeditiously as possible. Unless extenuating circumstances exist, the detention of devices ordinarily should not exceed five days.

Impact on Employers

Despite the improved guidance and clarified limits in the new CBP policy, employers may still be at some risk when employees carry electronic devices containing company data during international travel. While the CBP directive contains specific procedures for border searches when confronted with sensitive business confidential information, the directive does not preclude a border search of business confidential information. Thus, employers may wish to consider whether it is feasible to restrict employees from carrying electronic devices containing sensitive company data during international travel. When practicable, some employers already seek to determine whether they can provide “clean” electronic devices to be used by employees during international travel so that the devices do not retain company data. These practices may be effective for many employers since border searches of electronic devices are limited to data resident on the device, and CBP is not permitted to connect devices to external networks.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

ICE Raids on 7-Eleven Franchise Stores Result in 21 Arrests

On January 10, U.S. Immigration and Customs Enforcement (ICE) agents commenced employment audits at nearly 100 7-Eleven franchises across the U.S., signaling the biggest crackdown on suspected illegal workers since President Trump took office. The raids resulted in 21 administrative arrests. Following the raids, ICE Deputy Director Thomas Homan said in a statement: “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

ICE gave no reason why 7-Eleven, famous for the Slurpee, was targeted. The notices of inspection, also known as  I-9 audit notices, were served on stores in Washington, D.C., and in California, Colorado, Delaware, Florida, Illinois, Indiana, Maryland, Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Texas, and Washington. The franchise owners have three days to provide the agency with the immigration status of their workers.

The recent raids stem from a 2013 ICE investigation that resulted in charges against nine 7-Eleven franchise owners and managers. All of those individuals have now been arrested as of November 2017, and eight out of the nine pleaded guilty and were ordered to pay more than $2.6 million in restitution for back wages.

In its own statement, 7-Eleven said it is aware of the raids and its franchisees are “independent business owners” who are “solely responsible for their employees including deciding who to hire and verifying their eligibility to work in the United States.” 7-Eleven says it has terminated the franchise agreements of franchisees convicted of violating immigration laws.

President Trump ran on a campaign promise to prevent U.S. business from employing undocumented workers. ICE’s actions against 7-Eleven are a clear indicator of keeping that promise. Expect ICE to move forward with similar enforcement actions, as one top ICE official stated the 7-Eleven raids were “a harbinger of what’s to come” for employers.

 

© 2018 Barnes & Thornburg LLP.
This post was written by Joseph D. Hess from Barnes & Thornburg LLP.
Click here for more Immigration Coverage from the National Law Review.

Administration’s Regulatory Agenda Signals Continued Push to Align Visa Programs With “Hire American” Goals

On December 14, 2017, the Office of Information and Regulatory Affairs (OIRA) released the Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions, which is a report on the rulemaking efforts U.S. administrative agencies intend to pursue in the near- and long-term.

If enacted, several items in the agenda have the potential to impact employers’ immigration programs. The relevant proposals include the following items:

  • U. S. Citizenship and Immigration Services (USCIS) is proposing to issue a rule that would eliminate the ability of certain H-4 spouses to obtain employment authorization documents (EADs).
  • USCIS is proposing to issue a rule (originally introduced in 2011) that would establish an electronic registration system for H-1B petitions that are subject to the annual quota (H-1B cap filings). DHS notes that the rule is “intended to allow USCIS to more efficiently manage the intake and lottery process” for these petitions. USCIS notes that this rule may include a provision for a modified selection process, as outlined in the Buy American and Hire American Executive Order, such that “H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
  • USCIS is proposing to issue a rule that would revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship” in the H-1B context. USCIS notes that the purpose of these changes would be to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition for [H-1B eligibility].” The rule may also contain provisions regarding the payment of appropriate wages to H-1B visa holders.
  • The Department of State is proposing and finalizing several rules that would enact various modifications to the exchange visitor (J-1) program. These changes include arrangements relating to the administration of the J-1 program, provisions to help ensure the safety and well-being of foreign nationals who enter the U.S. as exchange visitors, and efforts to reinforce the cultural exchange and public diplomacy aspects of the program. Changes may also include an expansion of the types of jobs that are prohibited under the summer work travel category.
  • As a “long term action,” U.S. Customs and Border Protection (CBP) is proposing a rule that would clarify the criteria for admission to the United States as a temporary visitor for business (B-1) or pleasure (B-2). CBP also notes that the proposed revisions would “make the criteria [for entry as a temporary visitor] more transparent.”
  • Immigration and Customs Enforcement (ICE) is proposing to issue a rule that would effectuate a comprehensive reform of the practical training options (OPT) available to nonimmigrant students. The proposed provisions include increased oversight over the schools and students participating in the program. The stated purpose is to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students.”

Employers may want to keep in mind that although the abstracts listed in the agenda seemingly have the potential to impact many areas of the immigration system, it is premature to draw conclusions about the effect of these proposed changes without first seeing the text of the rules themselves—none of which have been released, and some of which may not even be drafted. Additionally, both the agenda itself and the timing for the rules, are aspirational; in prior years, only a select number of proposals have actually turned into rules, and ever fewer have actually followed the stated timelines. As noted previously, for example, a proposed regulation on the electronic registration system for H-1B quota petitions was originally introduced in 2011, but no further action occurred.

Should a proposed rule actually be issued, the agencies must conform to the notice-and-comment protocols of the Administrative Procedure Act. Effectively, this requires the agency to issue a proposed rule that explains the agency’s plan to accomplish a certain goal or address a problem.  This is followed by a comment period, during which time any interested parties can submit comments about the proposed rule. Prior to issuing the final rule, the agency must review all comments and indicate its reasoning for either modifying the rule on account of a comment or explain why the proposed comment does not merit a revision to the rule. Rulemaking is typically a prolonged process that takes a minimum of several months to accomplish. In other words, a proposed rule (which is different than most of the abstracts found in this agenda, which only state the intent to issue a rule) would be the first step in what could be a complex and lengthy rulemaking process that may take many months before promulgation of any final rule.

Finally, employers may want to take note that many of the administration’s prior attempts to enact changes to the immigration system have been subject to lengthy and robust legal challenges. Any such litigation on a proposed rule could increase the timeline for implementation, assuming the rule survives the legal challenge at all.

In summary, although the agenda provides some insight into the goals of the administration on employment-based immigration, the publication of the agenda itself does not alter the status quo.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C

This post was written by Jacob D. Cherry of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more information check out the National Law Review’s Immigration page.

Sixty-Day Grace Period for Nonimmigrant Workers after Loss of Employment

The U.S. Department of Homeland Security has promulgated a regulation affecting highly skilled foreign workers when they lose their jobs. The stated purpose of the regulation is to improve the ability of U.S. employers to hire and retain highly skilled foreign workers and to increase the ability of those workers to pursue new employment opportunities.

Nonimmigrant workers are individuals who enter the United States for a temporary period of time and are restricted to the activity consistent with their visas (those in E-1, E-3, H1B, H1B1, L-1, O-1 and TN status). Prior to this regulation, a nonimmigrant worker who was laid off or whose employment was terminated would immediately begin to accrue unlawful status. Since the beneficiary of a visa petition must be in valid status at the time of filing, a sudden loss of employment was particularly problematic in terms of transferring the visa to a new employer. While U.S. Citizenship and Immigration Services (USCIS) was somewhat forgiving if a new sponsoring employer was identified quickly, the conventional wisdom was that the USCIS would not approve a transfer petition if the beneficiary was out of work in excess of one month.

The new regulation provides for a 60-day discretionary grace period, during which a nonimmigrant worker does not accrue unlawful status. This allows nonimmigrant workers two months to locate a sponsoring employer to whom the visa may be transferred, to apply for a change of status or to wind up their affairs before departing the United States.

Employment is not authorized during the grace period, but the nonimmigrant worker may begin working with the filing of a transfer petition by a new employer. A worker may use the grace period only once for each validity period. For instance, if a worker loses his job and then uses the grace period to transfer his visa to another employer, he may still be eligible for another 60-day grace period should he lose that job. Unused days in the first grace period cannot be carried over into a subsequent grace period. USCIS has the discretion to deny or shorten a grace period if there are violations of status such as unauthorized employment, fraud or criminal convictions, among others.

The 60-day grace period is a welcome accommodation to nonimmigrant workers who find themselves suddenly laid off or their employment terminated.

© 2017Wilson Elser Moskowitz Edelman & Dicker LLP
Learn more on our Immigration Practice Group page.

The Agricultural Guestworker Act Gaining Ground

In October, the Agricultural Guestworker Act of 2017 (House Resolution 4092), introduced by U.S. Rep. John Goodlatte (R-Va.), was passed by the House Judiciary Committee and sent to the full House. Michigan’s lone representative on the committee, Rep. John Conyers (D), voted against it.

John Kran, national lobbyist with Michigan Farm Bureau, commented that “any farmer who’s dealt with this issue will tell you that the availability of domestic workers continues to decrease. This bill not only deals with the seasonal workforce, but the need for year-round ag workers.” The need for such legislation is clear, at least to farmers. Currently, the only way farmers can have the peace of mind about a legal workforce is to go through the H-2A program, which is so notorious for burdensome paperwork, long lead times and woefully complicated processes that Michigan Farm Bureau established the Great Lakes Agricultural Labor Services (GLALS) to help farmers successfully navigate the process.

Goodlatte’s legislation would create a new H program, called H-2C, under which a new guest-worker program would be established, allowing farmers to hire workers for up to 18 months for seasonal labor and 36 months for year-round labor, such as are needed on dairy farms, other livestock operations, and food processing, including meat packing. “Michigan dairies have a huge need for the longer visa, and poultry and hog operations have trouble finding people too,” Kran said. “The bill isn’t perfect, but it’s a good place to start.” Among the things Farm Bureau would like to see changed in the bill is a mandatory limit on the number of workers allowed in. The bill proposes that the number be capped at 450,000 per year, with an ‘escalator’ for additional need.

 

© 2017 Varnum LLP
This post was written by Aaron M. Phelps of Varnum LLP.
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