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”?

The recent attacks in Paris and San Bernardino are going to result in increased security checks for visa applicants at U.S. consular posts. We also anticipate Congress to at least review the Visa Waiver Program for potential changes, based on President Obama’s address to the nation. Referencing one of the San Bernardino terrorists who allegedly had come to the U.S. on the Visa Waiver Program (there is also reporting that she came to the U.S. under the K-1 visa program but we cannot verify the facts), Obama called for Congress to look carefully at the rules of the program. We don’t know what this means, but we are likely to see more restrictions to the Visa Waiver eligibility criteria in the coming months. There will certainly be more interest in Congress to make reforms relating to security and visas generally.

Continue Reading Post Paris and San Bernardino Attacks: Visa Policies Under More Scrutiny

In the first of a series celebrating the 50th anniversary of the Immigration and Nationality Act of 1965, this post explores the concept of birthright citizenship. 

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President Lyndon B. Johnson signing the Immigration and Nationality Act of 1965 on Liberty Island in New York Harbor. Via the LBJ Library online (LBJLibrary.org)/ Presidential candidate Donald Trump discussing immigration reform. Via CNN.

Election years often revive old bones of contention, and the issue of birthright citizenship is but one of many that comes and goes.  The 2016 presidential election is no different, and thanks to Republican candidate Donald Trump the meaning and appropriateness of birthright citizenship granted under the 14th Amendment has once again come to light.

Continue Reading Immigration and Nationality Act 50th Anniversary Series: Birthright Citizenship?

Coinciding with the end of the government’s fiscal year, the EB-5 regional center program is set to expire today. However, it will get a temporary reprieve with expected final passage of a Continuing Resolution (CR) that will fund the government through December 11 and also temporarily extend the regional center program through that same date.  Alexander Hecht and R. Neal Martin of ML Strategies, our consulting affiliate, and Douglas Hauer posted an alert for our clients regarding the status of the EB-5 program and the continuing resolution.

 

Mr. Chairman, I’m pleased to provide my testimony today as a follow-up to previous appearances before this committee. I’ve testified on two other occasions to explain the need for a more certain and predictable way to attract and retain the talent my company and others need—even if that means foreign talent. However, it is apparent that my previous testimony fell on deaf ears. If anything, my explanation of the need for visa availability for high skilled workers has met with more resistance due to political posturing for the 2016 presidential election. Continue Reading A HYPOTHETICAL: Testimony of a U.S. Business Owner Before the U.S. House of Representatives Subcommittee on Immigration and Border Security

On July 14, 2015, the House Judiciary Committee met to discuss oversight of the United States Department of Homeland Security (DHS). Immigration was a major topic alongside border security and global threats of terrorism, domestic terrorism and cyber-security.

What’s the temperature right now for immigration reform with the Committee?

Cold. Possibly even a deep freeze.

One congressman stated that we need to take “adult responsibility” to enforcement of immigration laws. That’s not a promising start. The concerns that surfaced involved more enforcement of the H-1B program to prevent abuse, DHS taking more steps to apprehend removable or deportable individuals in sanctuary cities, and more enforcement across the board.

For U.S. employers with very concrete concerns about retaining foreign talent, this perspective could not be more detached. The Committee is flying over this discussion at 35,000 feet, with no compass, no direction and no flight plan. From the notes, one would think that there is chaos, with criminals running the streets and DHS standing on the curb, refusing to engage in any enforcement-related activities. The Committee needs to get into the weeds to understand what needs to be fixed with our immigration system. Business goes on for U.S. employers, but failing to fix our immigration laws is costly. Here is what we lose:

  • Emerging companies and start-ups struggle with visa issues and as a result locate R&D facilities abroad
  • U.S. employers have insufficient H-1B visa numbers to employ the best and brightest
  • We have a green card investment program (EB-5) close to expiration in September 2015, which deters foreign investors from infusing capital into the United States
  • We have a clumsy technology platform for issuing visas that resulted, this summer again, in thousands of qualified visa applicants being stranded abroad.

If the notes to the Committee’s meeting are any indication of where we are headed, we should not expect Congress to pass any meaningful immigration-related legislation in the coming year. There is severe mechanical failure on the immigration law reform front.

Expect any congressional progress toward immigration reform to be canceled or at least delayed for some time. Don’t bank on any meaningful changes to the law in the coming year.

On January 13, 2015 Senators Orrin Hatch (R-UT), Amy Klobuchar (D-MN), Marco Rubio (R-FL), Chris Coons (D-DE), Jeff Flake (R-AZ), and Richard Blumenthal (D-CT) introduced the Immigration Innovation Act of 2013 into the Senate.  This bill, known as S. 169 or “I2”, clearly has bipartisan support, and aims to broadly reform high skilled immigration.  The bill was originally introduced by Senator Hatch in January, 2013 but it was quickly overshadowed by the Senate’s comprehensive immigration reform bill, and neither bill made any headway in Congress.  Perhaps this year the result will be different.

The bill contemplates reforms that are long overdue, including the following:

  • A market-based adjustment to the H-1B visa cap with a new floor of 115,000;
  • Elimination of the existing 20,000 cap on the U.S. advanced degree exemption for H-1B visas;
  • Authorization of employment authorization for spouses of H-1B visa holders (not limited to spouses of H-1B visa holders being sponsored by their employers for green cards);
  • Elimination of the requirement in the immigration law that foreign students prove they intend to return to their home countries following graduation;
  • Recapture of green card numbers previously approved by Congress, but unused;
  • Exemption from the employment-based green card cap of dependents of employment-based immigrant visa recipients, US STEM advanced degree holders, persons with extraordinary ability and outstanding professors and researchers;
  • Elimination of outdated per-country limits for employment-based visa petitions and adjustment of per-country caps for family-based immigrant visas; and
  • Establishment of a grant program using funds from new fees added to H-1B visa petitions and employment-based green card petitions, to further needed STEM education and worker retraining.

For years business groups across the country have been clamoring for the types of reforms reflected in this bill.  The big question is whether the current Congress is capable of enacting stand-alone immigration legislation that focuses only on skilled immigration.  If the House introduces similar legislation in the foreseeable future it will be a good sign that a joint bill may be in the offing.