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.

On October 3, 2018, California U.S. District Judge Edward Chen granted a preliminary injunction in the case of Ramos v. Nielsen, preventing the Department of Homeland Security from terminating Temporary Protected Status for El Salvador (scheduled to end on 9/9/19), Haiti (7/22/19), Nicaragua (1/5/19), and Sudan (11/2/18).  The injunction remains in place until the Court lifts it or the lawsuit ends. Continue Reading California Court Temporarily Enjoins Administration from Ending Temporary Protected Status; Other TPS Lawsuits Proceed

Earlier this year, the Department of Homeland Security (DHS) announced that it will terminate the temporary protected status (TPS) program for nationals of El Salvador on September 9, 2019.  Employment authorization documents (EADs) held by qualifying individuals that expired on March 9, 2018, were automatically extended through September 5, 2018, providing applicants time to apply for new EADs valid through the termination date.

Because the USCIS has been unable to process EAD extension applications in a timely manner, DHS has further extended the expired EADs through March 4, 2019, provided that:

  • The EAD has a marked expiration date of March 9, 2018, and the individual applied for a new EAD after January 18, 2018; or
  • The EAD has a marked expiration date of September 9, 2016, and the individual applied for a new EAD on or after July 8, 2016.

USCIS states that it will mail a Notice of Continued Evidence of Work Authorization to eligible individuals to present to their employers for I-9 verification purposes.  Those who have not received their notices by September 4, 2018, must contact USCIS at (202) 272-8377.  In the interim, nationals of El Salvador can show employers the USCIS web page to continue working lawfully while awaiting their letters.  The web page can be found at this link.

The Department of Homeland Security (DHS) announced that because the conditions in Nepal no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on July 24, 2018, will now terminate on June 24, 2019.  TPS allows qualifying persons inside the United States to remain and work lawfully in the United States until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final year of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

Continue Reading DHS Announces Final TPS Re-registration for Nepal

The Department of Homeland Security (DHS) announced that because the conditions in Honduras no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on July 15, 2018, will terminate on January 5, 2020.  This conclusion is at odds with the State Department travel advisory, which says that travelers should reconsider travel to Honduras due to violent crime (murder, assault, rape, armed robbery, gang activity, etc.).  The travel advisory can be found here.

TPS allows qualifying persons inside the United States to remain and work lawfully until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final period of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

DHS has not yet provided details for nationals of Honduras holding TPS status to re-register to extend their status through the designation end date of January 5, 2020.   When those instructions are issued, the employment authorization documents held by qualifying individuals already set to expire on July 15, 2018, will likely be automatically extended for six months, providing applicants time to apply for new employment authorization documents valid through the termination date.

The Department of Homeland Security (DHS) announced that because the conditions in El Salvador  no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on March 9, 2018, will terminate on September 9, 2019.  This conclusion is at odds with the State Department travel advisory, which says that travelers should reconsider travel to El Salvador due to violent crime (murder, assault, rape, armed robbery, gang activity, etc.).  The travel advisory can be found here.

Continue Reading Temporary Protected Status for El Salvador to End

The Department of Homeland Security (DHS) announced today that because the conditions in El Salvador no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on March 9, 2018, will terminate in 18 months.  TPS allows qualifying persons inside the United States to remain and work lawfully in the United States until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final 18 months of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

USCIS will issue a notice in the Federal Register with the exact dates for re-registration and employment authorization document (EAD) renewal.  We expect that EADs set to expire on March 9, 2018, will be automatically extended for 6 months.  We will update this entry as soon as the Federal Register notice is released.

DHS announced that it is extending Temporary Protected Status (TPS) for nationals of Honduras who already hold TPS. TPS allows qualifying individuals to remain and work lawfully in the United States until conditions in their home countries improve.  The new extension allows qualifying individuals from Honduras to re-register for TPS by  February 3, 2018.  Employment authorization documents held by qualifying individuals who timely re-register are automatically extended through July 5, 2018 (the USCIS web page indicates July 4, but the Federal Register notices indicates July 5). Employers can rely on the Federal Register notice for I-9 employment verification and re-verification purposes, which can be found here.

TPS typically is extended in 18-month increments, but the Secretary has the discretion to extend TPS for shorter periods.  Because the Secretary did not make a determination on Honduras’ designation by the statutory deadline (November 6, 2017), the extension was automatically extended for 6 months.  While DHS can still extend TPS further for Hondurans, it seems unlikely since DHS is ending TPS for other countries.  If TPS for Hondurans is not extended further, those unable to acquire another legal status will need to prepare to depart the United States by July 5, 2018.

The Department of Homeland Security (DHS) announced that because the conditions in Nicaragua no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on January 5, 2018, will now terminate on January 5, 2019.  TPS allows qualifying persons inside the United States to remain and work lawfully in the United States until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final year of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

Nationals of Nicaragua holding TPS status have until February 13, 2018, to re-register to extend their status through the designation end date of January 5, 2019.   Employment authorization documents held by qualifying individuals already set to expire on January 5, 2018, are automatically extended through March 6, 2018, providing applicants time to apply for new employment authorization documents valid through the termination date. Employers can rely on the Federal Register notice for I-9 employment verification and re-verification purposes, which can be found here.

The Department of Homeland Security (DHS) announced that because the conditions in Sudan no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on November 2, 2017, will terminate on November 2, 2018.  TPS allows qualifying persons inside the United States to remain and work lawfully in the United States until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final year of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

Nationals of Sudan holding TPS status have until December 11, 2017, to re-register to extend their status through the designation end date of November 2, 2018.   Employment authorization documents held by qualifying individuals already set to expire on November 2, 2017, are automatically extended through May 1, 2018. Employers can rely on the DHS announcement for I-9 employment verification and re-verification purposes.