Immigration
Below is our top 10 list of changes that the current administration has put into place, without legislation or regulations that drastically change the immigration landscape for employers, immigrants and their families:
10. U.S. Citizenship and Immigration Services (USCIS) increases site visits to employers who hire H-1B and L-1 nonimmigrant workers.
9. Consular officers re-adjudicate approved employment-based petitions to ensure the foreign national is eligible for the benefit even though USCIS already approved that petition.
8. Administration re-examines the current policy of granting work authorization documents to H-4 spouses.
7. USCIS no longer affords deference to nonimmigrant visa extensions but instead will treat those cases as completely new filings.
6. The Justice Department plans to accelerate immigration case proceedings and implement judicial quotas, threatening due process.
5. Supreme Court lifts stay on travel ban for eight countries even where the foreign national has a close family relationship to a U.S. citizen.
4. U.S. Customs and border Protection and consular officers undertake extreme vetting of foreign nationals at ports of entry and at consulates in the name of “Buy American and Hire American.”
3. Temporary Protected Status ends for several countries whose nationals have lived and worked in the United States for many years and whose children were born here.
2. The Deferred Action for Childhood Arrivals (DACA) recipients remain in limbo, with an average of 120 recipients’ protection expiring daily and no congressional action in sight.
And, the No. 1 threat to immigrants, their employers, and their families for 2018:
1. The government does not seem to want foreign nationals to become or remain legal.
(Why? Because the government has enacted policies aimed at reducing legal immigration and obstructing those who have the ability to become or remain legal, to include the targeting of visa-violators despite having available remedies under the law.)
(See related stories below.)
Supreme Court Allows the Travel Ban to Take Effect While Litigation Continues
On Dec. 4, 2017, the U.S. Supreme Court issued two orders staying the preliminary injunctions issued against President Trump’s Sept. 24, 2017, Presidential Proclamation, or “Travel Ban,” pending disposition of appeals still pending in the courts. The ban restricts nationals of Chad, North Korea, Iran, Libya, Venezuela, Syria, Yemen, and Somalia from entering the United States. Nationals of these eight countries are subject to the various restrictions contained in the table below, unless eligible for an exemption or waiver.
COUNTRY NONIMMIGRANT VISAS IMMIGRANT/DV
Chad |
No B-1, B-2, and B-1/B-2 visas |
No immigrant or diversity visas |
Iran |
No nonimmigrant visas except F, M, and J visas |
No immigrant or diversity visas |
Libya |
No B-1, B-2, and B-1/B-2 visas |
No immigrant or diversity visas |
North Korea |
No nonimmigrant visas |
No immigrant or diversity visas |
Somalia |
No immigrant or diversity visas |
|
Syria |
No nonimmigrant visas |
No immigrant or diversity visas |
Venezuela |
No B-1, B-2, or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of the Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family. |
|
Yemen |
No B-1, B-2, and B-1/B-2 visas |
No immigrant or diversity visas |
Additionally, nationals of Iraq will be subject to extra screening measures. Major exemptions to the ban include permanent residents, those who were already in the U.S. or in possession of a valid visa on December 4, dual nationals (when traveling on the alternate passport), A, G, NATO, and C-2 visas, or those already granted asylee or refugee status. The travel ban will remain in effect pending the disposition of the Administration’s appeals of district court rulings to the U.S. Court of the Appeals for the Ninth Circuit and Fourth Circuit, and any subsequent review by the Supreme Court.
New Homeland Security Secretary
On Dec. 5, the Senate confirmed Kirstjen M. Nielsen as the new Department of Homeland Security (DHS) Secretary with a 62-37 vote. She was sworn in the following day. While Secretary Nielsen is the first former DHS employee to hold the position, many senators who voted against confirmation noted that she lacks sufficient management experience.
Increased Worksite Enforcement and Audits of H-1B (and L-1) Petitions
The Office of Inspector General (OIG) conducted an audit of the H-1B program and determined that USCIS employer site visits were being conducted in a sparse and inefficient manner. The purpose of these visits is to determine if the foreign national is working at the jobsite indicated in the petition, if the salary stated in the petition is being paid, and if the job duties are accurately stated. The OIG made several recommendations to USCIS to improve their policing efforts. As a result, USCIS is likely to request more funds from Congress to increase its capacity to ensure the integrity of the H-1B program through targeted site visits.
The report acknowledged that USCIS approves about 330,000 H-1B petitions per year, with roughly 680,000 H-1B holders present in the country in a given year. While USCIS conducts targeted and random site visits to the employers of these beneficiaries, the OIG reported that employer site visits were both limited in their application (7,200 visits per year) and shallow in their individual thoroughness. USCIS does not always take action after negative site visits, and 81 percent of revocations are based on the easiest reason: the qualifying relationship does not exist between the H-1B employer and the beneficiary. Furthermore, the agency does not properly train its officers and cannot retain the good ones, nor does it track its costs, success, or efficiency. The OIG concluded that USCIS permits noncompliance – including fraud – to perpetuate the H-1B program.
The OIG recommended that USCIS develop a process to accurately track the visits, procedures, costs, and results of its compliance effort, and use the data to establish performance measures. USCIS also should reevaluate how it can better allocate its resources to site visits, and develop a comprehensive strategy to prioritize fraudulent offenders. USCIS concurred with these recommendations, and is hoping to revamp H-1B enforcement measures by the end of 2018.
Employers should be prepared for increased site visits. Random site visits will likely entail a confirmation of the employer’s location, the actual presence of the beneficiary, the job duties performed, and the salary provided. For that reason, the job duties on the petition should not only be as accurate as possible, but well known by both the employer and the beneficiary. Targeted visits also may be aimed at instances where the employer’s basic business information cannot be verified through USCIS’s private contractor as well as those employers with very high ratios of H-1B workers and on staffing or consulting companies that place workers at other companies in order to supplement that company’s workforce or to provide consulting services. Employers who outsource their workers to third party worksites should make especially sure they have properly documented the beneficiary’s schedule in the submitted itinerary, and that the employer-employee relationship is strong. Of course, all employers should ensure their I-9 records are in order at all times.
Updates on TPS and ‘Deferred Enforced Departure’
The following is an update and roundup of the current status of TPS for some 10 countries. As of August 2017, an estimated 325,000 TPS beneficiaries live in the United States. More than 90 percent of individuals with TPS are nationals of El Salvador (195,000), Honduras (57,000), or Haiti (50,000). The remaining beneficiaries come from six other countries and certain Liberians are beneficiaries of “deferred enforced departure.” Recently, the Administration terminated TPS designation for Haiti, Nicaragua, and Sudan. (Bold font indicates the country’s designation will be terminated in 2018 and 2019):
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El Salvador: DHS has not yet determined the fate for TPS for El Salvador; TPS is currently in effect though 3/9/18.
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Haiti: DHS announced the termination of Haiti’s TPS but delayed the effective date for 18 months; its TPS designation terminates on 7/22/19.
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Honduras: DHS determined that additional information was necessary regarding the TPS designation for Honduras, but extended TPS for six months until 7/5/18.
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Liberia: Deferred Enforced Departure for certain Liberians through 3/31/18.
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Nicaragua: DHS announced the termination of Nicaragua’s designation for TPS effective 1/5/2019.
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Nepal: DHS extended TPS for Nepal through 6/24/2018.
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Sudan: DHS announced the termination of Sudan’s designation for TPS, effective 11/2/2018.
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South Sudan: DHS extended South Sudan’s designation for TPS for 18 months, effective through 5/2/2019.
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Syria: DHS extended and re-designated Syria for TPS through 3/31/18.
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Yemen: TPS for Yemen was extended and re-designated through 9/3/2018.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]