No one would deny that 2017 was a frenetic year when it came to US Immigration. From the initial chaos of the Travel Ban to the drama of DACA, we witnessed the new administration initiate profound shifts in immigration policy and practice. When it comes to employer-sponsored immigration, perhaps the most lasting impact of 2017 will be the Presidential Executive Order entitled “Buy American and Hire American” (BAHA), issued in April 2017. This executive order proclaimed, “to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad . . .”
2018, likewise, has started with a bang! Since the first of year, the administration has announced the phase-out of Temporary Protected Status (TPS) for nearly 200,000 people from El Salvador, floated and popped a “trial balloon” change in policy relating to H-1B extensions for green card applicants, and a Federal Judge issued a nationwide injunction to prevent the roll-back of DACA. In fact, the politics of immigration may very well dictate whether Congress keeps the federal government open business beyond this week. In an effort to assist employers, visa holders and international travelers in navigating these fast-paced developments, we will analyze the above and additional coming attractions.
Increased Scrutiny of Immigration Petitions and Visa Applications
Within a few weeks of the BAHA executive order, the US Citizenship and Immigration Service (USCIS) departed from long-standing practice and started to issue requests for evidence (RFEs) challenging entry-level H-1B petitions. USCIS also reversed prior policy by issuing memos scrutinizing H-1B eligibility for Computer Programmers, TN eligibility for certain “economists” and rescinding established guidance mandating deference to prior adjudications. With these initiatives in place, employers should prepare for the following:
- RFEs – An uptick in RFEs challenging nonimmigrant visa petitions. Even for extensions of stay where no change in circumstances from the prior, approved petition.
- Visa delays – More challenges at the US Embassies and Consulates due to mandated BAHA considerations impacting H-1B, E, L and other nonimmigrant visa petitions. In addition, more visa applicants will be subject to delays due to administrative processing and increased vetting.
- AOS interviews – Mandatory in-person interviews for employment-based adjustment of status applications (AOS, Form I-485). Previously, USCIS only conducted in-person interviews for employment-based cases in very limited circumstances.
Changes in H-1B Adjudication Practices and Curtailing of Related Benefits
The administration has made no secrets about its desire to reform and restrict the H-1B program. BAHA specifically “suggests” that the agencies implement “reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” To that end, employers should expect the following:
- Specialty occupation – Further scrutiny of H-1B petitions relating to the definition of “specialty occupation.” What was previously considered a qualified H-1B occupation might no longer be the case. Challenges to “entry-level” H-1B roles will likely continue, especially during the upcoming H-1B cap season.
- Employer-employee relationship – Expect USCIS to continue questioning the employer-employee relationship in their adjudication of H-1B petitions. This will significantly impact employers who place H-1B workers at third party worksites.
- Cap lottery – At the end of last year, the Department of Homeland Security (DHS) published a regulatory notice of its intent to establish an electronic registration program for H-1B cap subject petitions. This would replace the current H-1B lottery system. If adopted, employers would no longer need to submit a full H-1B petition until the petition was selected for processing. DHS has yet to publish a formal regulation and it is not clear if this system will be implemented in time for the April 2018 H-1B cap season.
- H-4 EADs – DHS also put the public on notice that it is working a rule to rescind or restrict work authorization (EAD) eligibility for H-4 dependent spouses of H-1B nonimmigrants who are in advanced stages of the green card process.
- OPT reform – Immigration and Customs Enforcement (ICE) published notice that by October 2018 it will issue a proposed rule to comprehensively reform the optional practical training (OPT) program for foreign students. The administration previously indicated its plan to rescind the Obama STEM-OPT Extension rule that expanded the extensions of OPT for foreign nationals holding U.S. degrees in STEM fields from 17 months to 24 months.
Entrepreneur Parole Program
The International Entrepreneur Rule (IER) was published under the previous administration with an initial effective date of July 11, 2017. However, on July 11, 2017, six days prior to taking effect, the current administration published a rule delaying the effective date until March 14, 2018 while it considered whether to eliminate the program. Then, on December 1, 2017, a Federal District Court vacated the delay rule. Per the court order, DHS/USCIS is now accepting applications but DHS has also published notice of its intent to revoke the rule.
Under the IER, DHS may use its parole authority to grant a period authorized stay and work authorization, on a case-by-case basis, to foreign entrepreneurs who demonstrate the following:
- Possess a substantial ownership interest in a start-up entity, established in the US within the past five (5) years and has “substantial potential” for rapid growth and job creation;
- Has a central and active role in the start-up entity; and
- Will provide a significant public benefit to the US based on their entrepreneurial role by showing:
- Start-up has received significant investment of capital from qualified US investors with established records of successful investments;
- Start-up has received significant awards or grants for economic development, R&D, or job creation from federal, state or local governments; or
- Start-up partially meets either or both of the above requirements and can provide additional “reliable and compelling” evidence of its substantial potential for rapid growth and job creation.
The details for submitting an IER application are found here. Considering this benefit may be short-lived, individuals should consult with counsel before applying.
Worksite Enforcements and Compliance
Needless-to-say, the current administration has been very clear about its intention to rachet up immigration enforcement. In a recent statement, Acting Director Holman announced that he had instructed the agency’s investigative arm, Homeland Security Investigations (HSI), to increase workplace probes “by four or five times,” nationwide. Just last week, DHS conducted a targeted, nationwide operation directed at 7-Eleven stores and this week various news organizations are reporting about DHS plans for an “immigration sweep” in California.
Per federal law, there are stiff penalties for improper hiring practices, including failure to complete, correct, and properly store an I-9 for each employee, as well as for uncorrected errors on existing I-9s. Such penalties include:
- $216 to $2,156 for each improperly completed I-9;
- $539 to $21,563 per employee for employing undocumented workers;
- $178 to $1,782 for unfair documentary practices related to improperly verifying employment; and
- $445 to $17,816 per violation for citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee.
Moreover, Employers with federal contracts sanctioned for employing undocumented workers, may also face suspension or debarment cutting off their ability to conduct business with the federal government.
H-1B employers and employers utilizing H-1B contract workers have been and will continue to see an increase in Administrative Site Visits. Under this program, USCIS Fraud Detection and National Security (FDNS) officers make unannounced visits to employer worksites to collect information for compliance review of approved or pending H-1B, L-1 and religious worker petitions. Per BAHA directives, we also expect to see an uptick in civil investigations by the Department of Labor (DOL), Wage and Hour Division (WHD). The WHD is charged with enforcing employers’ compliance with wage and other H-1B related obligations.
CBP Border Searches of Electronic Devices and Related
Earlier this month, U.S. Customs and Border Protection (CBP) announced an updated directive for searching electronic devices at U.S. borders. The new directive supersedes previous policy, issued in 2009, which equated electronic media searches with those of other personal items such as briefcases, backpacks and notebooks and did not require individualized suspicion.
Under the new directive, agents may conduct a “basic search” of an electronic device by requesting access to it and, if need be, bypassing encryption or a password to gain access. With supervisory approval and upon a finding of reasonable suspicion of illegal activity or national security concerns, CBP officers may also conduct a more comprehensive “advanced search,” which involves not only gaining access to a device, but reviewing, copying or analyzing its contents.
The Directive limits searches to information stored on the device as presented for inspection. As such, officers may not intentionally use the device to access information stored remotely (in the cloud). The Directive also details specific procedures and limitations relating to information identified, or asserted to be, protected by the attorney-client privilege or attorney work product, sensitive information such as medical records, journalists’ work product, and confidential business or commercial information.
On a related note, CBP announced on January 5, 2018, that, as of January 8, 2018, it began sending email notifications to Visa Waiver Program (VWP) travelers 10 days before their I-94 expiration date to remind them of how long they can legally remain in the United States. Travelers should expect to receive emails from Staycompliancefirstname.lastname@example.org, and CBP warns that any email message from any other address may be fraudulent or part of a scam. It should be noted, VWP travelers who enter at the land border are not registered in ESTA and are not likely to receive a compliance email. In addition, a new feature added to the I-94 website under the “View Compliance” tab allows VWP travelers to check the status of their admission to the United States by informing travelers of the number of days remaining on their lawful admission or the number of days they have remained past their admitted until date.
DACA and TPS
On September 5, 2017, the administration rescinded the Deferred Action for Childhood Arrivals (DACA) program and commenced a process to phase-out the program. However, on September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, a federal judge of the US District Court, Northern California issued an order directing the government to partially maintain the DACA program. The federal government has filed a notice of appeal to the Ninth Circuit Court of Appeal and also announced its intention to seek direct review in the US Supreme Court.
At the present, DACA is back in business on a nationwide basis. Subject to a few exceptions, the program is operating under the same terms as existed prior to the announced rescission. Per the court order, USCIS announced it resumed accepting requests to renew a grant of deferred action under DACA as follows:
- Individuals who were previously granted deferred action under DACA may request renewals of their status and work authorization in accordance with USCIS instructions. USCIS has previously instructed applicants to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant and instructions stated that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. Applicants should consult with counsel if they intend to file a renewal more than 150 days in advance.
- Individuals whose DACA expired on or after September 5, 2016 may still file a renewal request.
- Individual whose previous DACA expired before September 5, 2016 cannot request DACA as a renewal, but may file a new initial DACA request.
- DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal, but may file a new initial DACA request.
- USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA.
- USCIS will not accept or approve advance parole (travel authorization) requests from DACA recipients.
In addition to the above, the administration has announced the termination of Temporary Protected Status (TPS) for individuals from El Salvador, Haiti, Nicaragua, and Sudan. The termination dates for each vary (some occur late in 2019) and TPS registrants from these countries will be eligible to renew their registration and work authorization through termination. Under TPS, employment authorization is often extended automatically per announcements in the Federal Register and employers, when put on notice that an employee may hold TPS status, should take care to follow specific procedures during the I-9 employment verification and reverification process.
Perhaps you may be asking, what happens if the government shuts down and what impact will it have on immigration and visa processing? The politics of immigration are playing into the Congressional negotiations on a federal spending. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, January 19, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Generally and based on previous government practice, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work. In such instances, the DOL, Office of Foreign Labor Certification (OFLC) would cease processing all applications and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible. USCIS is a fee-funded agency with the exception of E-Verify, so if the government shuts down, it should continue accepting and processing applications and petitions and only E-Verify goes offline. CBP and ICE personnel are considered “essential” their respective operations should continue during a shut down. Ports of entry will be open and immigration enforcement and removal operations will continue. As to DOS and its Embassies and Consulates, visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations. However, if the shutdown is prolonged, visa processing could slow down, as consular posts will shift resources to handle diplomatic visas and “life or death” emergencies.
Happy New Year?