Top 10 Threats to Immigrants, their Employers, and their Families in 2018

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. 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. CBP 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. TPS ends for several countries whose nationals have lived and worked in the United States for many years and whose children were born here.

2. DACA recipients remain in limbo, with an average of 120 recipients’ protection expiring daily and no congressional action in sight.

And, the number one 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.)

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):

·         El Salvador: DHS has not yet determined the fate for TPS for El Salvador; TPS is currently in effect though 3/9/18.

·         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.

·         Honduras: DHS determined that additional information was necessary regarding the TPS designation for Honduras, but extended TPS for six months until 7/5/18.

·         Liberia: Deferred Enforced Departure for certain Liberians through 3/31/18.

·         Nicaragua: DHS announced the termination of Nicaragua’s designation for TPS effective 1/5/2019.

·         Nepal: DHS extended TPS for Nepal through 6/24/2018.

·         Sudan: DHS announced the termination of Sudan’s designation for TPS, effective 11/2/2018.

·         South Sudan: DHS extended South Sudan’s designation for TPS for 18 months, effective through 5/2/2019.

·         Syria: DHS extended and re-designated Syria for TPS through 3/31/18.

·         Yemen: TPS for Yemen was extended and re-designated through 9/3/2018.

 

Supreme Court allows travel ban to go into effect

The Supreme Court granted the application for a stay of the District Court's preliminary injunction of October 17, 2017, pending disposition of the government's appeal in the Court of Appeals for the Fourth Circuit and disposition of the government's petition for a writ of certiorari, if one is sought. The court also issued a similar order in Trump v. Hawaii, meaning that the presidential proclamation of September 24, 2017 will go into full effect while the appeal is pending.

USCIS No Longer Affording Deference to I-129-based Extensions

For over 10 years, USCIS has taken the approach that, when adjudicating extension petitions involving the same employer, the same beneficiary, and the same underlying facts, its adjudicators would defer to prior approval determinations. USCIS has now reversed this policy, interpreting it as placing an extra burden on the agency to find and compare an old petition to an extension and shifting the burden of proof to USCIS when that burden lies with the petitioner. Moving forward, USCIS officers will be treating all extensions as independent and new filings, even though promulgated regulations do not require supporting documents in many kinds of nonimmigrant extension cases. In its announcement, USCIS also stated that it does not want its adjudicators to rely on previous determinations at all, as it may have the unintended consequences of missing material defects in prior petitions.

 

TPS ending for Nicaragua

The Department of Homeland Security has announced that Temporary Protected Status (TPS) for Nicaragua will be terminated on January 5, 2019.  DHS has not made a determination on TPS for Honduras; therefore Hondurans' TPS designation has been automatically extended for six months to July 5, 2018.

To review the full press release, see: https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-protected-status-nicaragua-and

Another Travel Ban Halted by the Courts

The Trump Administration’s third attempt to ban from the United States foreign nationals from certain countries was halted on October 17, 2017 - a day before it was to take effect. Two federal judges prevented the ban from being implemented nationwide, one in Hawaii issuing a temporary restraining order and the other in Maryland issuing a temporary injunction. The Administration has announced it will appeal the cases to the circuit courts of appeal, and ultimately the Supreme Court will likely hear the cases. (The Supreme Court was scheduled to hear arguments on the second travel ban in October, but remanded the case to the lower court as moot.)

This was third travel ban issued in an executive order by the Administration, and included eight countries (Libya, Iran, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela), each with a different restriction.  Unlike the first two bans, this ban was of an indefinite duration. As of this writing (October 20), “Travel Ban 3.0” is only applicable to North Korea and Venezuela because those countries were not included in the lawsuits.

The majority of the countries were included in Travel Ban 3.0 because of their subpar information-sharing capabilities. Others, however, were more focused.  For Venezuela, leading government officials are banned, while North Korean, Syrian, and Somali nationals are subject to a blanket ban. Seven of the eight countries are subject to a complete ban on immigrant visas. The rationale provided by the Administration for the distinction between immigrant and nonimmigrant visas is that individuals awarded immigrant visas enter the U.S. as legal permanent residents and, by virtue of their status, become more difficult to remove. Because the banned countries have substandard information collection and sharing capabilities, the reasoning goes, the U.S. cannot properly vet these foreign nationals before granting them permanent residence. Refugee admissions remain in limbo, banned until the vetting process is further assessed.

In the meantime, the Administration announced that it will reevaluate the list of banned countries every six months to determine if information-sharing and security concerns have been addressed, though the lack of formal relations with Iran or North Korea does not bode well for these countries in the future. Likewise, Somalia has been included in the travel ban — not because its government doesn’t cooperate with the U.S., but simply because the government does not have control over all of the country’s territory. For that reason, it will be difficult for Somalia to get off the list of banned countries any time soon. Chad, an ally of the United States, is a curious inclusion.

More on DHS Expansion of In-Person Interview Requirement for Adjustment of Status Applicants

On October 1, USCIS began phasing in in-person interviews for all employment-based I-485 adjustment of status cases when the underlying petition is a Form I-140 (EB-1, EB-2, and EB-3) and when the case was filed after March 6, 2017. During several public informational meetings, USCIS provided further guidance on who is subject to the new requirement, what the process will be, and what applicants can expect.  Here are the highlights: 

·         I-360-based adjustment of status cases (Special Immigrant Visas) are currently not subject to the in-person interview requirement.

·         USICS will incrementally expand the requirement to I-730 petitions for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

·         Children under the age of 14 are eligible for a waiver of the interview requirement.

·         USCIS will endeavor to schedule family members together.

·         The National Benefits Center (NBC) will conduct pre-processing case review to ensure that the case is “interview ready.”  Interviews will be held at local USCIS field offices.

·         NBC will issue requests for evidence for a medical exam or Supplement J, if not submitted with the initial adjustment of status filing.

·         USCIS will entertain the possibility of permitting remote or Skype participation by attorneys so that applicants represented by out-of-district counsel can continue to be represented at the interview by that attorney rather than having to retain local counsel.

·         USCIS will not readjudicate the underlying petition but will seek to validate the evidence included with the I-140; thus, the interview itself will focus on the applicant’s work as well as issues of admissibility.

·         Derivative family members should be prepared to bring to the interview evidence of their relationship to the principal applicant.

·         USCIS anticipates a 17 percent increase in workload at USCIS field offices, which will affect family-based and naturalization application interview processing times.

·         The 10 most affected offices are San Jose, San Francisco, Newark, New York, Houston, Chicago, Dallas, Atlanta, and Los Angeles.

The overall impact of the expanded interview requirement will not be seen for several months, both in terms of its value and delays. 

Military Access to Expedited Naturalization Reversed

The Department of Defense reversed a Bush-era policy that offered expedited naturalization to lawful permanent residents (LPRs) enlisted in the military. Under the new policy, enlistees must undergo a new security clearance process that will take a year before entering basic training. Previously, enlistees could be shipped to basic training if the background investigation had been initiated and all other security screenings were met. Now, to receive the certification of honorable service in order to apply for expedited naturalization, the LPR military member must first complete the background screening, complete training, and have at least 180 consecutive days of active duty service or one year of satisfactory service in the selected reserves. The policy is effective immediately and will affect currently pending applicants — including by recalling and decertifying already received certificates of honorable service. It is also likely that service in the U.S. military will have an impact on the immigrant’s ability to process other immigration applications, including for work, travel, and sponsoring family. We caution any LPR interested in enlisting to review this new policy and see how it will affect their immigration status and ability to serve.

Update on DACA

Under pressure from various states, President Trump opted to terminate the DACA program, leaving thousands of DACA recipients in a considerable bind. Although the President had previously promised that DACA recipients would not have to worry about their status, a handful of states threatened to settle the issue in court, which would likely have resulted in a court-ordered termination of the program. Rather than have the Justice Department put forward a lackluster defense of the program, the President has shifted the burden to Congress to legislate a permanent solution for DACA recipients before the program ends in March 2018.

Unlike the 112th to 114th Congresses, which refused to work with President Obama on this issue, the 115th Congress is actually poised to enact a concrete solution. The best approach has been the Dream Act of 2017, which has been introduced in both the Senate and the House of Representatives. Eligibility is predicated on entering the U.S. as a minor, being present for at least four years, and having no criminal background. For those eligible, a conditional green card is granted for an eight year period. In order to remove the conditions and become a full-fledged permanent resident, the applicant needs to accomplish two years of college, two years of military service, or three years of employment during the conditional period, as well as maintain residence in the U.S. and have no criminal offenses. Successfully removing the conditions will put these individuals on the path to citizenship. The Dream Act is focused, has the most bipartisan support, and would help the most people. Republican proposals, like the RAC (Recognizing America’s Children) Act and the SUCCEED Act, are similar but have more stringent eligibility requirements and reach fewer individuals. The American Hope Act introduced by Democratic Representative Gutierrez falls at the opposite end of the spectrum, and is the least restrictive and most generous, but lacks bipartisan support. However, the American Immigration Lawyers Association (AILA) has placed its support behind the Dream Act as the most reasonable bipartisan solution.

The most recent congressional hearing on DACA took place on October 3. Senators posed tough questions to DHS and DOJ officials, but received little specific details as to what sort of compromise the Administration would accept. It is difficult to predict which of these bills will eventually gain the support and momentum needed to resolve the long-term legal status of DACA recipients, but there is hope that Congress will act.

Preconceived Intent and Activities After Entry: The New 90-Day Rule

In September, the Department of State (DOS) updated its Foreign Affairs Manual — a guidebook used by consular officials for determining visa eligibility — as to what constitutes misrepresentation when applying for a visa abroad.  As part of the Administration’s heightened scrutiny, a broader scope of inconsistent conduct within 90 days of entry to the United States will be reviewed to find a presumption of willful misrepresentation. DOS will look to information provided on the visa application, during the interview, and at the port of entry to see if activity in the United States within the first 90 days of entry conflicts with those statements. Such activity includes: unauthorized employment, enrolling in unauthorized academic studies, marrying a U.S. citizen or permanent resident (LPR) and taking up residence in the United States (other than those with visas that allow dual intent such as Hs and Ls), and engaging in activities that would typically require a change in status where none was done. This is critically important for those looking to come to the United States because an individual may be barred for life (unless an appropriate waiver is obtained) if they are found to have misrepresented important facts. USCIS has not yet updated its agency guidance to mirror the DOS’s position, and it is unknown if the agency will to so, given that there is legal precedent that governs USCIS and it would be required to undertake formal rulemaking. In any case, foreign nationals should be extremely mindful that their activities during the first 90 days of entry can be detrimental to their longer term immigration options. Previously, if an applicant applied for change of status within 30 days of entry, this created a presumption of misrepresentation. If the applicant did so between 30 and 60 days from entry, that presumption of intent to misrepresent could be rebutted by the foreign national. After 60 days, there was no presumption of preconceived intent or misrepresentation.

New Travel Ban Announced by White House

On September 24, 2017, the President issued a new version of the prior travel bans, which includes an expanded list of countries whose nationals are affected, and the impact on those nationals varies.  The U.S. Department of State has published detailed information about each of the countries affected and how the new ban impacts the nationals of those countries: Presidential Proclamation on Visas.

Chenhalls Nissen, S.C. is watching this development closely, particularly in light of the recent delay in the Supreme Court's review of the prior travel ban.  If you are from one of the affected countries, please contact your attorney before any travel abroad.