Foreign Students Will Face New Threats

 DHS’s Fall 2017 regulatory agenda proposed “comprehensive reform” to practical training programs, which allow foreign students to obtain paid work after graduation – a pathway that often leads to H-1B and green card sponsorship by a U.S. employer.  Although no final rule has yet been published, ICE is still expected to end an Obama-era provision that extended practical training from one to three years for graduates in STEM fields who work for employers enrolled in E-Verify. ICE may also be looking at ways to restrict the standard one-year work permit that all students are eligible for, regardless of academic field.

In addition, USCIS’s August 2018 policy memorandum, “Accrual of Unlawful Presence and F, J and M Nonimmigrants,” will continue to adversely affect many students and may increase the number of students who become ineligible to return to the United States for three- or ten-year periods. Because foreign students occupy one of the most rule‑bound U.S. visa categories and depend on school staff to communicate what is permitted and what is not, unwitting lapses are common. Under the new policy, an officer of DHS (which includes ICE, CBP and USCIS) can retroactively determine that a student began accruing unlawful presence on the day they first failed to maintain status. If unlawful presence reaches 180 days, the three-year bar is triggered when the student leaves; a year of unlawful presence triggers the ten-year bar. This is a radical change in practice for students, who have always been admitted not until a fixed expiration date, as others are, but instead for “duration of status,” to more easily allow for changes in their academic programs. Until the August 2018 memo, students did not accrue unlawful presence unless a formal finding was made by USCIS terminating their status. Now, in addition to clarifying that both ICE and CBP can determine when unlawful presence begins, DHS also intends, according to its Fall 2018 regulatory agenda, to establish a maximum period of authorized stay for nonimmigrant students, eliminating “duration of status” benefits altogether.

Compliance and Enforcement Actions Will Broaden

Last year, we predicted that on-site visits by government inspectors to H‑1B and L-1 workplaces would increase and could expand to other visa categories.  We relayed accounts by our clients of site visits for employees on blanket L-1 visas and predicted increased surveillance and inspection in that category. In 2018, ICE initiated more than 6,800 worksite enforcement investigations and almost 6,000 I-9 audits, a four- and five-fold increase from 2017, respectively. We expect to see this trend continue in 2019 in all industries.

USCIS has also ramped up enforcement by focusing resources on its Fraud Detection and National Security Directorate (“FDNS”), which conducts administrative investigations of fraud in the context of petitions and applications to USCIS for immigration benefits. According to the USCIS Ombudsman’s June 2018 Annual Report to Congress, in Fiscal Year 2018, FDNS’s staffing levels doubled over FY2012 (from about 750 to more than 1,500), and its approach became more “risk-based,” using fraud criteria to target certain employers. Often, when a case is long past posted processing times, or a status message indicates the case is being held “in abeyance,” it is because FDNS is conducting a heightened background investigation. These can encompass government databases, open source information, physical site visits, written Requests for Evidence, and overseas verifications of foreign records. In 2019, we may see FDNS investigations and heightened background investigations lead to USCIS issuing a higher volume of Notices to Appear (“NTAs”), which initiate removal proceedings against an individual. It remains unclear whether USCIS will prosecute these cases through its own attorneys or, instead, will continue to rely on ICE to represent the government in immigration court. If USCIS has the resources to issue and prosecute NTAs, we may see even longer backlogs in already overloaded immigration court dockets.

We also expect a continued push by the government to make E-Verify mandatory for all U.S. employers. The E-Verify system now has the capacity to check driver’s licenses against databases in all fifty states, the District of Columbia, and Puerto Rico.  This is intended to reduce the number of fraudulent licenses that are presented for identity verification; however, E-Verify cannot determine whether the license actually belongs to a specific individual or compare the picture on the license to the individual.

Enforcement actions we expect to see throughout 2019 go beyond worksite I-9 compliance and E‑Verify. For example, with 2019 only one month old, we have already blogged about a sting operation in which ICE ran a fake university to target recruiters and students who may have knowingly registered despite the lack of instructors and classrooms, in order to obtain work authorization. We can expect to see continued enforcement actions aimed at student visa abuse and other forms of potential immigration fraud throughout the year.

 Public Charge Findings Will Contribute to Decreased Immigration

Individuals who are a “public charge” cannot support themselves through employment, assets or the help of family and friends, resulting in dependency on government benefits and assistance programs. Except for humanitarian categories (refugees, asylees, victims of crime, etc.), current law prevents immigrants from using major federal means-tested benefits for at least five years after gaining lawful permanent resident status; hence, they must be sponsored by an employer or by a family member who meets certain income requirements.  In October 2018, USCIS proposed a rule to greatly expand the benefits that would make someone a public charge, sweeping in many that have historically been exempt, including nutrition assistance from food stamps or the WIC program, health insurance through Medicaid, and housing help through Section 8 vouchers. In addition, the final rule would apply not only to individuals who are immigrating permanently to the United States, but also to those who seek only temporary admission or a temporary extension or change of their nonimmigrant status.  USCIS received more than 200,000 comments on the proposed rule, a daunting number that will take time to review and analyze.  However, because public charge has been a top priority for this Administration, we are likely to see a final regulation in 2019.  It is also likely that we will see litigation after the final rule is published, as it seems geared toward deterring and reducing legal immigration rather than truly examining the likelihood that immigrants will actually become a public charge.

A year ago, we blogged about the changes we saw coming in 2018 for U.S. employers and their employees under the April 2017 Buy American / Hire American executive order.  Though widespread across visa and green card categories, those changes have all amounted to increasing obstacles for U.S. companies to hire, retain and sponsor foreign nationals.  H‑1B workers, their H‑4 spouses, F‑1 students, TN professionals under NAFTA (to be replaced by the United States-Mexico-Canada Agreement, once approved by Congress), and L‑1 managers and specialists who transfer into U.S. companies from related foreign entities – all of these workers, as well as their employers, have been frustrated by dramatically increased processing times, new restrictions on expedited processing, questionable challenges to eligibility, often spurious denials, and generalized errors and oversights by federal immigration agencies.  Unfortunately, we expect these trends to continue, and other non-business-friendly changes are also on the horizon.

H-1B Workers Remain in the Cross-Hairs

In Fall 2017, the Department of Homeland Security proposed a new regulation that would do away with its long-standing H-1B lottery system. Over the years, as demand has grown, while congressionally allocated H-1B numbers have remained static, the annual filing period has shrunk to the first five business days of April, and the odds of being selected in the annual lottery have dropped to below 40 percent.  On January 31, 2019, as we previously discussed, DHS announced the final rule, which simultaneously:  (a) requires employers to pre-register the workers they wish to sponsor and submit petitions only if they are notified that they have been randomly selected to do so; (b) suspends the pre-registration requirement until Fiscal Year 2021; and (c) increases the odds that workers who have advanced U.S. degrees will be selected in the lottery this year and in the future.  The last provision appears to implement Buy/Hire American’s mandate to “ensure that H-1B visas are awarded to the most-skilled or highest-paid.”  However, as reported in the Wall Street Journal, court challenges to the new rule are likely, and with only eight weeks to go before the lottery window opens, any injunctions could disrupt H-1B filing season this year.

EB-1 Worldwide Waiting List Remains Backlogged

As subscribers to our blog were informed last fall, a surprising backlog developed in summer 2018 in the Employment-Based First Preference green card category.  The “EB-1” classification, which includes Outstanding Professors/Researchers, Multinational Managers/Executives, and Aliens of Extraordinary Ability in various fields, is exempt from the usual requirement that an employer prove no qualified U.S. worker is available before sponsoring a foreign national – a preliminary step that often adds a year or more to the overall green card process.  In addition, EB-1 demand has been historically low, even for Indian and Chinese workers, in comparison to other categories that have years-long waiting lists.  For these reasons, EB-1 sponsorship has traditionally been a much faster path to a green card for the lucky few who qualify.  This long-standing state of affairs abruptly changed in August 2018, when a waiting list of more than six years suddenly developed in the EB-1 category for Indians and Chinese and more than two years for all other nationalities.  Although the backlogs were expected to vanish in October, when annual allocations were refreshed at the start of Fiscal Year 2019, a wait list of more than a year has persisted for all countries.  As we explained in our Law360 article in December 2018, EB-1 backlogs may well be the “new normal” for a combination of technical and political reasons.  By regulation, if supply exceeds demand in the EB-4 and EB-5 categories – which include Religious Workers, Special Immigrant Juveniles, International Broadcasters, Panama Canal Zone Employees, Afghan/Iraqi Translators, and Immigrant Investors – those extra green card numbers are allocated to the EB-1 category.  Until last summer, a large “spill over” of this kind occurred every year without fail, keeping the EB-1 category current, or causing only brief interludes late in the year, when green cards were not available for Chinese and Indian nationals.  With a twelve-fold increase since 2010 in EB-4 Special Immigrant Juvenile filings, due to the surge in unaccompanied minors arriving from Central America, and a five-fold increase in EB-5 Immigrant Investors, we anticipate that the EB-1 category will remain retrogressed for the foreseeable future.

H-4 Work Permits Remain in Jeopardy

A year ago, we predicted that the Trump Administration’s threat to eliminate work permits for the spouses of H-1B workers would likely come to pass in 2018. This has not yet occurred, probably because the Administration has had bigger fish to fry, with unprecedented numbers of asylum seekers at the southern border, the resulting family separation crisis, and associated lawsuits.  Nonetheless, this item remains a priority on DHS’s Fall 2018 regulatory agenda.  We anticipate the agency will publish a proposed rule this year and lawsuits will follow.

DACA and TPS Lawsuits Continue

As has been widely reported in the mainstream media, President Trump has ended numerous humanitarian programs, including the Obama Administration’s Deferred Action for Childhood Arrivals (“DACA”), as well as Temporary Protected Status for nine nationalities, including several TPS programs that were established more than twenty years ago. As a result of lawsuits filed in multiple states, the government is temporarily enjoined from implementing these actions.  Although first-time applicants may not file for DACA at this time, DHS must continue to accept renewal applications.  However, since DACA work permits are not eligible for the automatic 180-day extension that other work permit categories enjoy, and since USCIS processing time for renewals varies from five months to more than two years at the regional service centers that handle them, DACA workers and their employers continue to face substantial disruptions.

Similarly, the government is prohibited from carrying out TPS terminations while three federal lawsuits move through the courts. Two of those lawsuits challenge terminations for El Salvador, Honduras and Haiti; the third seeks protection for TPS beneficiaries of any nationality who have U.S. citizen children.  Until the injunctions are lifted or the lawsuits resolved, TPS renewals may continue to be filed, and these workers do benefit from the 180-day automatic extension.

Please subscribe to our blog and stay tuned for the second installment of our 2019 forecast, which will cover the F-1 student visa category, worksite visits and other compliance and enforcement actions, and the impact of changes to the “public charge” rules.

The Department of Homeland Security (“DHS”) announced today that the final rule amending DHS regulations governing H-1B cap-subject petitions will be published in the Federal Register on January 31, 2019, and will become effective on April 1, 2019.

The new rule implements the electronic registration requirement, but suspends it for the FY2020 H-1B cap season. The rule also reverses the order in which the United States Citizenship and Immigration Services (“USCIS”) will select cap subject H-1B petitions.  USCIS will first select, in a random lottery, a sufficient number of H‑1B registrations (or petitions when the registration requirement is suspended) submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption, to meet the H-1B cap.  USCIS will then select from the remaining registrations (or petitions), also in a random lottery, a sufficient number of H-1B petitions to meet the advanced degree exemption.

For a more detailed discussion on how this new rule changes the selection process for H-1B cap-subject petitions, please see our prior post.

The United States Citizenship and Immigration Services (“USCIS”) has announced that the suspension of premium processing for FY2019 H‑1B cap cases, announced on March 21, 2018, has been extended until possibly February 2019.

USCIS also announced that effective September 11, 2018, premium processing will be suspended for H‑1B cases filed at the Vermont and California Service Centers, except for:

  1. H-1B petitions filed by cap-exempt petitioners or by petitioners who will be employing beneficiaries at qualifying cap-exempt institutions, entities, or organizations; or
  2. H-1B petitions filed at the Nebraska Service Center by petitioners requesting either an extension of a beneficiary’s H-1B status or requesting consular notification based on the continuation of the beneficiary’s previously approved employment without change with the same petitioner

In its announcement, USCIS explained that because of the recent increase in H-1B petitions filed requesting premium processing, USCIS has been unable to process long-pending H-1B petitions. Therefore, the expanded suspension of premium processing was required to allow USCIS personnel to focus on reducing the current backlog of pending H-1B petitions.

USCIS will continue to accept premium processing requests for H-1B cases until September 10, 2018. However, if a case is not adjudicated within the required fifteen calendar day timeframe, USCIS will refund the fee for premium processing and the case will be processed under regular processing.

We will update this post as soon as the suspension is lifted.

The USCIS announced today that the FY2019 H-1B cap has been met.  The USCIS will hold a lottery for the H-1B visas as early as next week.  Those selected will receive receipt notices in the mail; those rejected will have their filings returned, along with the filing fee checks.   We expect that the receipt notices for those selected will begin to trickle in later this month through most of May; the rejected petitions will take longer to return.  The USCIS has not yet released the number of petitions it received.  Please check back for updates.

The US Citizenship & Immigration Services (USCIS) has just announced that it will temporarily suspend premium processing service for H-1B Cap petitions for Fiscal Year 2019.  The suspension is expected to remain in effect until September 10, 2018.  Once the suspension is lifted, pending H-1B Cap petitions can be upgraded to premium processing service, if desired.  Other H-1B petition types, including petitions to amend or extend H-1B status, or to change employers, are not impacted at this time.  The official announcement can be seen here. We will continue to monitor these developments and will post updates as new information becomes available.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

This week, Tom Homan, acting Director of the Immigration and Customs Enforcement (ICE), announced that he has instructed Homeland Security Investigations (HSI), the investigative branch of ICE, to quadruple the number of worksite inspections.  Danielle Bennett, spokeswoman for the agency, confirmed this directive and added “ICE’s worksite enforcement strategy continues to address both employers who knowingly hire unauthorized workers and the workers themselves.”

What does this mean for U.S. employers? This means that employers should expect to see increased HSI visits during which HSI will conduct not only I-9 audits to ensure that employers are complying with established employment eligibility verification requirements, but also other investigations related to compliance with immigration and labor regulations.

Continue Reading Employers Should Take the Necessary Steps to Prepare for Increased Worksite Inspections

Although no official statement has been issued, the United States Citizenship and Immigration Services (“USCIS”) announced during a call with the American Immigration Lawyers Association’s Service Center Operations Liaison Committee that it expects to resume premium processing for all H-1B cases on or before October 3, 2017.   We will update this post as soon as USCIS makes an official announcement.