2017 Immigration Issues

The Trump Administration is evaluating potential reductions to U.S. cultural exchange programs that allow young people from across the world the opportunity to work temporarily in the US. The potential cuts would impact five programs that are part of the J-1 visa exchange visitor program.

The review of these cultural exchange programs is part of the President Trump’s “Buy American and Hire American” executive order issued in April. This order seeks to protect American workers by prioritizing their abilities in the U.S. labor market while directing the appropriate government agencies to review current U.S. immigration policies and procedures. The impacted J-1 programs include the Summer Work Travel Program, the au pair program, as well as programs geared towards camp counselors and interns.  Other J-1 visa programs are not under scrutiny such as those focused on educational exchange for college students.

This summer, bipartisan members of both the House and the Senate wrote to President Trump explaining the importance of the summer work travel program for both students and the small businesses that utilize these workers. Small businesses such as amusement parks, resorts, and restaurants across the country rely on the Summer Work Travel Program participants to adequately staff their seasonal job openings. Without the Summer Work Travel Program, these businesses would not have the necessary labor force to satisfy their consumer demand during the busy summer months. These businesses may be forced to shorten their hours or offer fewer services causing economic ramifications for many seasonal businesses.

While no decisions have been made on the future of these visa programs, some of the options include eliminating the programs or imposing new regulations on companies seeking to employ program participants.  Regarding the potential cuts, a White House official stated that “presently, we continue to implement the J-1 visa programs at the same levels we have for the past few years, and we appreciate the support that American businesses have shown for the program and its value to their local communities.”

Cuts to these programs could have economic implications and would eliminate a major facilitator of cross-culture exchange between U.S. citizens and those participating in the programs—the overriding policy goal of the J-1 program.  As we’ve seen with recent diplomatic issues between the U.S. and Russia, cuts in the eligibility of foreigners to enter the U.S. on this program could result in reciprocal cuts from other countries in the eligibility of U.S. citizens to participate in their counterpart programs.

In a continuation of the diplomatic tit-for-tat with Russia, the U.S. Embassy in Moscow announced on Monday, August 21, 2017, that it would suspend issuance of nonimmigrant visas for eight days starting August 23rd. Nonimmigrant visa issuance will resume at the Embassy on September 1st, but will be suspended indefinitely at other posts in Russia.

The Embassy’s statement cites the Russian government’s cap on personnel at the U.S. mission there as the reason for this decision. Nonimmigrant visa appointments already scheduled for this time are being cancelled and notifications sent to applicants. Applicants with cancelled appointments will have to reschedule at the Embassy in Moscow for a future date regardless of their location in Russia. For incoming university students, the Embassy plans to release a block of appointments to apply for F-1 and J-1 visas in early September.

This suspension of nonimmigrant visa issuance does not directly impact immigrant visa processing, but staffing issues may dictate the need to reschedule some of these appointments. Impacted immigrant visa applicants will be notified of any changes to their scheduled appointment times.

On August 2, 2017 Republican Senators Tom Cotton (AR) and David Perdue (GA) unveiled an immigration bill titled The Reforming American Immigration for a Strong Economy Act (RAISE Act).  While the stated purpose of this bill is to increase skilled immigration to the U.S. and protect the American workforce, it would do neither of these things.  Indeed, the effect of this bill would not be neutral – it would do great injury to the United States.

This bill purports to completely revise the U.S. immigration system by eliminating ALL family-based legal immigration categories except for spouses and minor children of citizens and permanent residents.  Even within this limited category, it would change the cutoff in the definition of a child from 21 to 18 years of age.  It includes an extremely limited grandfather provision for applications previously filed by visa applicants in categories which would no longer be included in the immigration law.   It adds a new temporary visa category for parents of U.S. citizens, but even if the parents were issued temporary visas to come to the U.S. (for up to 5 years) they would not be authorized to work in the U.S. for that entire period.

The categories of family-based immigration that would be completely eliminated by this bill include parents of U.S. citizens, adult, unmarried sons and daughters of U.S. citizens and their minor children, unmarried sons and daughters of permanent residents, married sons and daughters of U.S. citizens, and siblings of U.S. citizens.

The bill would also completely eliminate the Diversity Visa Program, which grants up to 55,000 immigrant visas each year to people from countries around the world whose countries have been underrepresented in our immigrant pool.  The Diversity Visa Program is important because it underscores that we value diversity in our country.  Through this program we have welcomed immigrants from around the world who add greatly to our culture.

The bill also cuts refugee admissions to 50,000 per year.  This is less than half of the number of refugees the United States had agreed to accept in 2016.  How we approach refugee admissions and the manner in which we treat those who have fled unspeakable horrors speaks volumes about who we are as a country.   Our refugee program is extremely strict and refugees must pass extensive background checks before being approved to come to the U.S.   The vetting process typically takes many years.  The combination of the moral and policy imperative to welcome refugees along with the strict vetting process that already exists, is a reason to raise, not lower, the number of refugees admitted to the U.S.

Finally, the bill sets out a points-based system for immigrating to the U.S. that completely ignores the needs and input of U.S. employers.  Individuals would have to submit applications claiming how many points they can prove, and only if they meet the threshold number of points to be “selected” by the government to apply for an immigrant visa, would they then  submit a letter from a potential U.S. employer to verify that a job is waiting for them.   The points that the applicant can prove will also be reduced if the applicant’s spouse would not independently meet the threshold number of points to qualify on his or her own.

This is a punitive system and it does not recognize the reality that U.S. employers typically employ foreign workers on temporary work visas, and once these employees have proved themselves in their jobs, the employers sponsor them for permanent status.

Lower-skilled immigrants would have no chance to immigrate to the U.S. unless they had a qualifying family relationship to a U.S. citizen or permanent resident.  Employers of both high-skilled and lower skilled workers care about the value that an employee can add to their organization and deserve a say in the employment-based immigration process.

Foreign students and those who have graduated from U.S. colleges and universities are ignored in this bill, as are artists, writers, musicians, entertainers and others who under existing law can immigrate if they can show they have risen to the top of their fields.

In this bill, foreign investors would face a higher investment threshold than exists currently and they would be held to a stricter standard for day-to-day involvement in the companies in which they have invested.

While the sponsors of the bill have said that its points-based system is modeled on the immigration programs in Australia and Canada, in fact those countries’ immigration programs are more generous and both Canada and Australia admit a much larger percentage of immigrants relative to the size of their populations.

We admit a tiny percentage of new immigrants to the U.S. relative to the size of our population.  In 2013, new immigrants to Canada equaled .74 percent of Canada’s population.  In the same year, new immigrants to Australia equaled 1.1 percent of the population.   Yet new immigrants admitted to the U.S. in 2013 accounted for just .31 percent of our population.*

If the RAISE Act truly was intended to model Canada’s or Australia’s skills-based immigration systems, then it would need to increase the number of annual employment-based green cards by many hundreds of thousands of green cards per year.

This bill would not strengthen the U.S.   It would weaken our country by separating families, reducing diversity, and turning away the types of immigrants that enhance our society and our economy.

 

* All statistics cited in this post are from Alex Nowrasteh’s articleSens. Cotton and Perdue’s Bill to Cut Legal Immigration Won’t Work and Isn’t an Effective Bargaining Chip,” published by the Cato Institute on August 2, 2017.

Effective immediately, United States Citizenship and Immigration Services (USCIS) will resume premium processing for select cap-exempt H-1B petitions. Cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service, along with the filing fee of $1,225.  

Such petitioners include: 

  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; and
  • A nonprofit research or governmental research organization.

Premium processing will also resume for petitions where the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity. 

USCIS will make future additional announcements regarding resuming the premium processing for additional H-1B petitions. Please contact your Mintz Levin immigration attorney with any questions.

This is a follow-up to the Supreme Court’s decision on June 26, 2017 which allowed the Trump Administration’s Travel Ban affecting nationals of the six designated Muslim-majority countries to be partially implemented until its hearing on the merits in the fall. The Supreme Court specifically exempted people with a “bona fide connection” to a person or entity in the United States.

As we reported on July 17, 2017, the U.S. Department of State interpreted this exemption to be applicable to only “close relatives,” limiting it to parents, spouses, fiancés, sons or daughters, siblings, sons-in-law, and daughters-in-law, and excluding resettlement organizations as qualifying U.S. entities for refugees. The U.S. District Court for the District of Hawaii then ruled that additional relatives in the U.S. and refugees accepted by resettlement organizations in the U.S. could qualify for purposes of this exemption from the ban. The Justice Department immediately appealed this decision. The Trump Administration asked the Supreme Court to clarify its June 26th decision. On July 19th, in a one-paragraph ruling, the Supreme Court refused to clarify its prior decision, but it allowed the Hawaii court decision expanding the categories of relatives to stand, pending the appeal of this decision by the Trump Administration to the 9th Circuit Court of Appeals. The additional qualifying relative relationships include grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins.

However, the Supreme Court stayed the lower court’s decision regarding refugees. Accordingly, at this time the relationship between a refugee and a sponsoring agency is not sufficient to overcome the travel ban, and only refugees with qualifying family relationships will be able to overcome the ban. This currently affects approximately 24,000 waiting refugees.

This issue continues to evolve, and we will continue to provide updates following breaking developments.

Effective upon publication by the Federal Register on Wednesday, July 19, 2017, the Department of Homeland Security (DHS) has authorized the one-time issuance of an additional 15,000 H-2B visas for Temporary Nonagricultural Workers through September 30, 2017. The annual H-2B cap, previously set by Congress at 66,000, had come under fire as being woefully deficient to help American businesses meet their temporary seasonal or short-term surge employment needs. This would include “seasonal workers” such as hotel maids or restaurant workers at summer resort areas such as Cape Cod or the Hamptons. For FY 2017, which expires on September 30, 2017, USCIS received sufficient H-2B petitions to meet the full statutory cap of 66,000 visas on March 13, 2017. In response to numerous reports of such businesses suffering substantial economic hardship due to labor shortages, USCIS, with Department of Labor assistance, is implementing this one-time increase in H-2B visas.

Working with the Secretary of Labor, Secretary of Homeland Security John Kelly authorized the issuance of an additional 15,000 H-2B visas for the remainder of FY 2017 to be given to U.S. businesses that would “suffer irreparable harm” because of the lack of available temporary nonagricultural workers. To qualify for these additional visas, U.S. employers must attest to, under the pains and penalties of perjury, that their business “is likely to suffer irreparable harm if it cannot employ H-2B nonimmigrant workers through September 30, 2017.”

We would usually cheer when we hear that an additional 15,000 temporary work visas will become available in a given fiscal year. But how helpful will these additional visas be to eliminate the current shortage of H-2B nonagricultural workers in FY 2017?

  • A portion of the businesses that have been complaining about the shortage of H-2B visas consists of businesses that thrive during the summer season in resort areas or by the shore. The summer season will be over in little more than a month. In fact, there are children who have to return to school as early as August 10th or 11th. It does not appear that there is sufficient time to process these visas to help any businesses that are tied to the “summer season.”
  • Similarly, FY 2017 will be ending September 30, 2017, approximately 2 ½ months from now. H-2B petitions require an approved mini labor certification demonstrating the unavailability of U.S. workers for the subject position(s). Given this time frame, is it worthwhile to sponsor an H-2B worker for the short time remaining? 

How many companies will actually be eligible for these additional visas if the U.S. employer must attest to and demonstrate “irreparable harm” to their business if they cannot employ H-2B workers in FY 2017?

  • Does “irreparable harm” mean that the U.S. employer must demonstrate that his/her business will be forced to close if H-2B workers cannot be employed during FY2017? Or does it mean that revenues will suffer?

Secretary of Homeland Security John Kelly still has to provide more information as to the eligibility criteria for these visas. Is this another example of providing “too little, too late”?

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) published another revised version of Form I-9, Employment Eligibility Verification. It will be mandatory for employers to use this new version of the form commencing September 18, 2017. Until September 18, employers may use either the new version I-9 with a revision date of 07/17/17 or the prior edition, which has a revision date of 11/14/16.

Although there are no revisions to the fillable portions of the form, there are changes to the Instructions to Form I-9 and the List of Acceptable Documents on Form I-9, specifically:

  • The I-9 Instructions reflect the name change of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • The new form removes “the end of” from the phrase “the end of the first day of employment” in the instructions part for completion of Section 1.
  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C acceptable document. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • In addition, the List of Acceptable Documents combines all of the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C (instead of being listed separately as #2 for Form FS-545 and #3 for Form DS-1350 on the prior version of the list).
  • Due to the above changes, please note that items were renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7. The SSN card remained the same number as it continues to be the first item on List C.

Moreover, all of these changes were also made in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). Thus, a new edition of the Handbook is available and it promises to be easier for users to navigate.

To see USCIS’s news release regarding its Form I-9 update, please visit its website. Mintz Levin’s attorneys stand ready to assist our clients with any questions regarding the new Form I-9

The U.S. and worldwide entrepreneur community had been looking forward to July 17th with great anticipation.  This was supposed to be the effective date of the new International Entrepreneur Parole immigration regulation.  This refreshing and innovative immigration option for foreign entrepreneurs would solve an enormous problem in the U.S. immigration system: the non-existence of a visa for start-ups founded by or being driven by talented foreign nationals.  Yet on July 11, 2017 the Department of Homeland Security published a notice in the Federal Register seeking comments on its desire to rescind the rule.

This entrepreneur parole process would not have been a cakewalk for applicants:  only those who could meet the stringent requirements associated with it would be able qualify (to be approved, entrepreneurs would have to own at least 10% of the enterprise and would have to have raised significant capital from established U.S. investors or government grants).  Applications would be very strictly reviewed, and only applicants who clearly qualified and passed required government background checks would be approved for this temporary status.

Yet despite the strict criteria, the entrepreneur community was delighted that the U.S. government (during the Obama administration) had finally rolled out an immigration solution to the enormous talent crisis facing the U.S. technology sector.

The technology industry is fueled in large part by immigration.  As of January, 2016 immigrants had started more than half (44 of 87) of America’s start-up companies valued at $1 billion dollars or more and are key members of management or product development teams in over 70 percent (62 or 87) of these companies.* Immigrants play vital roles in the technology industry in job creation, innovation and leadership.

Continue Reading Opportunity Foreclosed: The International Entrepreneur Parole Rule May Die Before it Gets Out of the Gate

On Monday, June 26th, the U.S. Supreme Court (SCOTUS) issued a mixed decision in the “Travel Ban” litigation, relating to Presidential Executive Order 13780 (“EO”). As explained in more detail below, the SCOTUS decision gave a partial victory to the respondents who had challenged the EO while at the same time upholding the travel ban and related provisions for certain foreign nationals who cannot demonstrate a sufficient nexus to a family member, employer, educational institution or other entity in the U.S.

The Supreme Court granted certiorari and consolidated the two federal court cases from the 9th Circuit Court of Appeals and the 4th Circuit Court of Appeals. It will hear arguments in the consolidated case in the Court’s October, 2017 term.

To read our full alert, click here.

The U.S. Supreme Court has ruled unanimously that naturalized American citizens cannot be stripped of citizenship if a lie or omission in the application process was irrelevant to the government’s decision to approve the naturalization application in the first place. The ruling in Maslenjak vs. U.S. will ultimately make it more difficult for the government to revoke citizenship, rejecting both the current and prior administrations’ position that all lies–even minor ones–can lead to loss of citizenship.

The case involved an ethnic Serb who lied about her husband’s military service during her refugee processing, obscuring his service in the Bosnian Serb Army. When later applying for naturalization, she falsely claimed that she had never given false or misleading information when seeking an immigration benefit. Divna Maslenjak arrived in the U.S. as a refugee in 2000 and became a citizen in 2007. In 2013, however, she admitted that her husband had indeed served in the Bosnian Serb Army, ultimately resulting in her conviction for making false statements on her application for naturalization, and eventually revocation of her U.S. citizenship for having been obtained “contrary to law.”

Maslenjak appealed, contending that, when the underlying offense in a citizenship revocation case is a false statement, the government must prove that the truth would have negatively influenced the original decision. The Sixth Circuit Court of Appeals disagreed, ruling that the government need not establish that Maslenjak’s misrepresentations were material to the original naturalization decision.

On June 22, the Supreme Court overturned the Sixth Circuit’s decision, focusing on the causal relationship between the violation and the acquisition of citizenship. The Court was particularly troubled that the government’s position results in a “mismatch between the requirements for naturalization on the one hand and those for denaturalization on the other” and the uncertainty this mismatch imposes on naturalized U.S. citizens.

The case will now return to the lower courts. Maslenjak’s U.S. citizenship could remain revoked, but only if the lower court determines that her false statements were in fact material to the approval of her naturalization application.

This ruling significantly raises the bar for revocation of citizenship. Requiring the government to show that it would have denied a citizenship application had it known the truth will make it more difficult for citizenship to be revoked. Even if the naturalized citizen’s lie had a real potential to affect the naturalization decision, the government will have to demonstrate not only that the lie could have impacted the decision, but that it actually would have made a difference. By disallowing revocation based on factors that might not have resulted in denial in the first instance, the Court provides naturalized U.S. citizens much greater security in their new status.