Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April.  This year, employers must also monitor for potential regulatory changes to the filing process.  On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.”  The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings.  While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.

The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.

US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association.  The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:

Continue Reading Impact of Proposed H-1B Rule on Annual Cap Filings

The federal government has entered its fourth week of a partial shutdown since December 22, 2018 because of a budget impasse between Congress and the White House.  This shutdown is the longest since 1995-1996, when the federal government was closed for 21 days, and now represents the longest lapse in federal funding in recent history.

Many agencies and departments continue operations through this shutdown because of previously approved funding bills or the essential nature of their personnel.  The information below summarizes the operating status of agencies responsible for immigration-related activities most relevant to employers. Continue Reading US Government Shutdown Impact on Immigration-Related Services

In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category.  Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly frustrated with the shift in adjudication patterns, new regulations, and changes to specific immigration categories and benefits.  For more on what’s in store in the new year, read the article.

A federal judge has barred President Trump’s recent asylum ban, now forcing the administration to accept all migrants crossing the southern border who seek protection, rather than limit asylum requests to U.S. ports of entry. As of last evening, Judge John Tigar of the U.S. District Court of Northern California issued a temporary restraining order that will require the U.S. Customs and Border Patrol to process all individuals crossing the California, Arizona, and Texas border. The bar will remain until a scheduled hearing to be held on December 19, when the judge will revisit the court’s view of a permanent injunction.

The judge’s bar quickly halts the administration’s new rule, and the U.S. Citizenship and Immigration Services’ accompanying policy guidance, which limit asylum pleas to official ports of entry between the United States and Mexico. The administration stated the restriction was necessary to protect U.S. national security from the migrant caravan, as 7,000 migrants, mainly from Honduras, began to arrive in Tijuana over the weekend.

The U.S. district court opinion describes the Congressional intent to offer asylum to all applicants, whether at designated ports of arrival or not, as explicitly cited under 8 U.S.C. § 1158(a)(1) of the Immigration and Nationality Act.

On July 30, 2018, US Citizenship and Immigration Services announced that it will postpone its June 28, 2018 guidance for the issuance of Notices to Appear (“NTA”) to commence removal proceedings in certain cases.  For the time being, USCIS will delay activating the new NTA policy until the agency determines an implementation plan.  USCIS did not indicate a timeline or date however by which it will publish its NTA operations plan, an agency function traditionally held by US Immigration and Customs Enforcement (“ICE”).

Although USCIS NTAs are on hold until further notice, employers can take practical steps now to prepare for the agency’s transition, specifically by assessing if any of their foreign national employees may be at risk of a potential removal or deportation proceeding.  For example, student employees should have their most current address on file with USCIS in case they receive a Request for Evidence, otherwise they will not be able to respond to USCIS, and could unknowingly receive a NTA if they fail to provide a respond.  Similarly, for employees whose work authorization relies upon a non-immigrant visa category, such as an H-1B visa, employers may renew or extend the non-immigrant status beginning six months in advance of the visa expiration.  Renewing a non-immigrant visa status as early as possible allows both employers and employees more time to respond to Requests for Evidence, or concurrently strategize other immigration options that may be available, and minimize a disruption of work.

For more information about the USCIS NTA policy delay, please read our Mayer Brown Global Mobility Legal Alert here.

 

USCIS Broadens Categories for Deportation Under New Policy Guidance and Will Issue Notices of Appearance 

On June 28, the U.S. Citizenship and Immigration Service (USCIS) issued new policy guidance that expands the circumstances under which an adjudicator will generate a Notice to Appear (NTA), a charging document that commences removal proceedings and the deportation process, and instructs its recipient to appear before an immigration judge.  The guidance broadens USCIS authority to initiate NTAs in cases of fraud, criminal activity, or when an immigrant applicant is denied an immigration benefit and accrues unlawful presence.  The guidance aligns the agency with current immigration enforcement priorities under Executive Order 13768, Enhancing Public Safety in the Interior of the United States.

Traditionally, under 2011 policy guidance, USCIS referred deportation matters to Immigration Customs Enforcement (ICE). Now, USCIS will issue NTAs on its own. The new guidance also states that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States”. Thus, applicants for U.S. citizenship, green card, or extension or change of status petitions who are ultimately denied could face deportation, whether they are business visitors, H-1B visa holders, or international students.

This policy shift may impact the American workplace if immigrant workers facing deportation lose their jobs due to deportation, and employers must rehire.

To compound the increase of deportation proceedings that the policy might spark, immigration courts and judges currently face over 700,000 backlog cases, almost double the 400,000 cases held in 2014 by the U.S. Department of Justice Executive Office of Immigration Review.

The new USCIS guidance exempts most Deferred Action for Childhood Arrivals recipients.

In a 5-4 decision issued on Tuesday, June 26, 2018, the US Supreme Court upheld the president’s broad statutory authority to suspend the issuance of visas to nationals of certain countries in the interests of national security. Finding the September 24, 2017, Proclamation 9645 (“Proclamation”) to be neutral on its face, the Court rejected the arguments of the State of Hawaii that the ban was a thinly veiled attempt to ban Muslims from the United States in violation of the Establishment Clause of the US Constitution and the Immigration and Nationality Act (“INA”).

“By its plain language, [the INA] grants the president broad discretion to suspend the entry of aliens into the United States,” the majority opinion, authored by Chief Justice John Roberts, states. “The president lawfully exercised that discretion based on his findings—following a worldwide, multiagency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.”

Continue Reading Supreme Court Upholds Trump’s Third Travel Ban

An article in Law360 outlines the key items addressed in the Trump administration’s spring 2018 regulatory agenda, which was made available to the public in early May 2018.  Topics on the list include structural changes to the Executive Office for Immigration Review, the office within the US Department of Justice that oversees US immigration courts; changes to the EB-5 investor visa program, including increasing the minimum investment amount from $500,000 to $1.35 million; and rescission of the International Entrepreneur Rule (“IER”), a program implemented during the Obama administration to grant parole to entrepreneurs seeking to establish and build startup businesses in the United States.

The article can be read here.

 

On March 27, 2018, ten former officials from the US Department of Justice, Department of Homeland Security, Immigration and Naturalization Service, Federal Bureau of Investigation, and Department of Health and Human Services filed an amicus brief to the Supreme court challenging the government’s misplaced reliance of the “presumption of regularity” in the Trump Travel Ban case.  “The presumption of regularity is founded on the commonsense idea that courts should assume that government officials ‘have properly discharged their official duties’…before entertaining doubts about the integrity of official acts or documents.” As former General Counsel of the Immigration and Naturalization Service, as well as former Executive Associate Commissioner and former Deputy General Counsel of that agency, Paul Virtue was one of the participants in the brief.  The brief was submitted “to make clear that the “presumption of regularity” has never been an obstacle to a court’s consideration of evidence showing that government officials have acted with an improper purpose.”  The brief can be read here.


On Tuesday, April 10, 2018, President Donald Trump announced that restrictions on travel would be lifted for citizens of Chad, one of eight countries included in the third version of the administration’s controversial travel ban.   In doing so, the president cited improvement in Chad’s identity-management and information sharing practices. Originally announced on September 24, 2017 in the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” Travel Ban 3.0 imposed restrictions on travel for nationals of Chad and seven other countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.   Mayer Brown’s Legal Advisory in September 2017 addresses the precise restrictions on each of the countries. Continue Reading President Lifts Travel Ban 3.0 for Chad, But Seven Other Countries Remain Barred