April 19th, 2016 by W. Scott Railton
The U.S. Supreme Court heard oral arguments in U.S. v. Texas on Monday. This is one of the most anticipated cases on this year’s calendar, and it centers on President Obama’s program to allow certain undocumented persons come out of the shadows, be listed as a low priority for removal, obtain work authorization, and consequently gain a social security number and/or perhaps a driver’s license. Some say the President’s program could impact over 4.5 million persons. Texas and 25 other states sued to enjoin the program, as an overreach of the Executive branch. Certain harms were alleged, including the costs of issuing driver’s licenses. Texas et al. prevailed in the lower courts. A 4-4 ruling, based on the current composition of the court, would mean the lower court rulings stand.
I think the Supreme Court should rule in favor of the United States in this case, but based on the questions, a 4-4 partisan split seems likely. Congress has empowered the Executive Branch to enforce the nation’s immigration laws. If Congress wants to change the scope of that power, Congress can legislate accordingly. That’s my take, but Justice Kennedy wears the robe, and he seemed to take a different view on Monday. See his comment below in the transcripts excerpts (p. 24).
The U.S. Solicitor General really pushed the argument that Texas et al. do not have standing. Justice Breyer seems to be in agreement, and he was ready with case cites. Justice Roberts and Justice Alito seemed very skeptical of the U.S.’s position, but they also had questions about who else might be impacted by an adverse decision. (p. 27-28, p. 90, below.) The Solicitor General said 4.5 million adjustment of status applicants have received work authorization since 2008.
As Justice Breyer put it, this is a case with “tremendous political valence.” Four disparate issues are presented, involving judicial standing, constitutional authority of the Executive, the Administrative Procedures Act, and the Take Care clause. Both sides presented slippery slope type arguments, saying an adverse verdict will open the floodgates of litigation. There’s a good chance that’s where this is headed, unless someone (I’m looking at you, Justice Kennedy) is moved by the greater implications of standing and getting unnecessarily involved in what is fundamentally a political dispute.
Here are some excerpts from the 100+ pages of transcripts which I found interesting:
JUSTICE KENNEDY: What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.
GENERAL VERRILLI: The reason I had no problem writing it is because that phrase, “lawful presence,” has caused a terrible amount of confusion in this case; I realize it. But the reality is it means it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way. That you have any defense to removal. It doesn’t mean any of those things, and it never has. And – and so it doesn’t – and so at that fundamental level, we are not trying to change anybody’s legal status on the immigration- –
CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.
GENERAL VERRILLI: Right. Tolerated
CHIEF JUSTICE ROBERTS: I’m sorry, that just so I get that right.
GENERAL VERRILLI: Yes.
CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.
GENERAL VERRILLI: Correct
JUSTICE ALITO: But they are –the DAPA beneficiaries are –may lawfully work in the United States; isn’t that correct?
GENERAL VERRILLI: That’s right.
JUSTICE ALITO: And how is it possible to lawfully work in the United States without lawfully being in the United States?
GENERAL VERRILLI: There are millions of people, millions of people other than the DAPA recipients about whom this is true right now. And this gets to the point of why their reading of Section 1324 is completely wrong.
JUSTICE ALITO: I’m just talking about the English language. I just don’t understand it. How can you be–
GENERAL VERRILLI: Well, let me
JUSTICE ALITO: How can you – how can it be lawful to work here but not lawful to be here?
JUSTICE SOTOMAYOR: You know, you keep saying that, “deep economic significance.” Those nearly 11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not. The answer is, if Congress really wanted not to have an economic impact, it would – it would allot the amount of money necessary to deport them, but it hasn’t.
JUSTICE KAGAN: But then it seems to me, General Keller, that your –that what you should be attacking is not DAPA. What you should be attacking is the work authorization regulations that the DHS, or before that the INA, has had for years. Or you should be attacking other connections that DHS is making with respect to these people, but not DAPA itself.
MR. KELLER: But Justice Kagan, I think it is DAPA itself that we’re challenging. And the reason why is because that is what is transforming unlawful conduct into authorized lawful conduct.
JUSTICE GINSBURG: Where does it say that in DAPA? We have the DAPA directive. I didn’t see anything in it about work authorization or about Social Security.
JUSTICE BREYER: I would like to ask a question. The only thing I found here is about money, really. If there’s something else that’s worrying you, it’s – -it’s sort of hidden. But money is money; I understand that. And my question is about standing.
And this is technical, but it’s important to me.
Looking at the briefs, awful lot of briefs, senators, both sides. Awful lot of briefs from States, both sides. Members of Congress. Why? Because this has tremendous political valence. Keep that in mind.
Now, keeping that in mind, let’s go back to two old cases which are scarcely mentioned. But old Supreme Court cases never die.
JUSTICE BREYER: –unless, luckily, they’re overruled. And a few have been. They’re submerged like icebergs.
JUSTICE BREYER: The one I’m thinking of is Frothingham v. Mellon, Massachusetts v. Mellon. And there, in those cases, the Federal government had given something to some people. There were beneficiaries. Other people wanted to sue because they said that means we’re going to have to pay more money. And the Court said, you other people from Massachusetts, I’m sorry Massachusetts lost, but lo and behold, it did. That’s just because I’m
JUSTICE BREYER: But the point is they lost, because, says the Court, we can’t let you just sue on the basis that you, as a taxpayer, will have to spend more money. Because if we do, taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds.
GENERAL VERRILLI: Exactly. And there are all kinds of statuses that don’t qualify as lawful status that people have always been allowed to get work authorization during the period in which – time where their presence is tolerated.
CHIEF JUSTICE ROBERTS: How – how many people are we talking about with those?
GENERAL VERRILLI: Millions. Millions. There are
CHIEF JUSTICE ROBERTS: The asylum applications?
GENERAL VERRILLI: No, but the adjustment of status, 4.5 million since 2008, and cancellation removal, 325,000 since 2008. Huge numbers.
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April 13th, 2016 by W. Scott Railton
U.S. Citizenship and Immigration Services announced that it has completed the H-1B lottery process for non-cap exempt employers. The agency received over 236,000 applications for approximately 85,000 slots.
The system is flawed. The annual H-1B lottery process highlights the failure of Congress to meet the needs of employers nationally, as well as the administrative shortfalls of an agency stuck in the 20th century. The severe shortage of available slots, in an already expensive and highly regulated process, shows how unconnected the rhetoric on H-1Bs in Congress is to the business realities American employers face.
As an immigration attorney, I find the administrative dysfunction of USCIS on H-1B handling appalling. The agency could very reasonably hold an electronic lottery for those who wish to apply, and then issue tickets or permissions-to-file for those selected. If they did, employers could save substantially in time and money invested in preparing full applications. After weeks of discussion and preparation, I do not enjoy telling clients that their application was not selected. Further, with a pre-lottery system, the Department of Labor would not need to field 236,00 applications for labor condition applications, and USCIS would save on all the costs related to handling the petitions it receives. Reports are the agency receives truckloads of petitions on April 1st each year. Welcome to bureaucracy, I suppose.
Enough with my rant. Here is USCIS’s announcement today on completing the selection process:
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.
USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.
The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.
As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
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April 1st, 2016 by Heather Fathali
With tax season in full swing, a telephone scam has been targeting unsuspecting taxpayers, including noncitizens. Scammers impersonate IRS agents; making aggressive and often convincing phone calls, demanding that the subject owes the IRS money and that if payment is not made immediately the subject will be arrested or deported. The IRS does not pursue payment in this way.
The IRS has published the following advisory, available at https://www.irs.gov/uac/Tax-Scams-Consumer-Alerts:
IRS-Impersonation Telephone Scam
An aggressive and sophisticated phone scam targeting taxpayers, including recent immigrants, has been making the rounds throughout the country. Callers claim to be employees of the IRS, but are not. These con artists can sound convincing when they call. They use fake names and bogus IRS identification badge numbers. They may know a lot about their targets, and they usually alter the caller ID to make it look like the IRS is calling.
Victims are told they owe money to the IRS and it must be paid promptly through a pre-loaded debit card or wire transfer. If the victim refuses to cooperate, they are then threatened with arrest, deportation or suspension of a business or driver’s license. In many cases, the caller becomes hostile and insulting. Or, victims may be told they have a refund due to try to trick them into sharing private information. If the phone isn’t answered, the scammers often leave an “urgent” callback request.
Note that the IRS will never: 1) call to demand immediate payment, nor will the agency call about taxes owed without first having mailed you a bill; 2) demand that you pay taxes without giving you the opportunity to question or appeal the amount they say you owe; 3) require you to use a specific payment method for your taxes, such as a prepaid debit card; 4) ask for credit or debit card numbers over the phone; or 5) threaten to bring in local police or other law-enforcement groups to have you arrested for not paying.
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March 5th, 2016 by W. Scott Railton
The Department of Homeland Security announced the launch of its “Known Employer Pilot Program” this week. The intent of the program is to create efficiencies for USCIS and employers. Under the pilot program, up to nine pre-selected employers will upload information about themselves, requesting that they be evaluated in advance for meeting qualifications for certain types of immigration applications. This program is created based on recommendations for the agency to modernize the immigration system.
As a practitioner, my first reaction is if the agency is seeking efficiencies, it needs to look no further than at the size of its forms. The Notice of Appearance that attorneys must file has gone from one page to four; naturalization applications have doubled in length; and the same is true for most other types of applications. Instead of going paperless, the agency has gone paper-more.
Stepping off that soapbox—we’ll have to wait and see how this program goes, but on paper the goals of the program seem laudable.
Here’s the USCIS Press Release:
March 3, 2016
Contact: DHS Press Office, (202) 282-8010
DHS LAUNCHES KNOWN EMPLOYER PILOT PROGRAM
WASHINGTON – The U.S. Department of Homeland Security (DHS) today announced the launch of a Known Employer pilot to assess a new process for employers seeking to hire certain workers through employment-based visa categories.
By modifying the process U.S. Citizenship and Immigration Services (USCIS) uses to reviews an employer’s eligibility to sponsor individuals under certain employment-based immigrant and nonimmigrant classifications, the Known Employer pilot is expected to reduce paperwork, costs, and delays in the processing of these benefit requests. USCIS will oversee the pilot in collaboration with the DHS Office of Policy, U.S. Customs and Border Protection (CBP) and the U.S. Department of State (DOS).
“Last year, DHS announced it would explore a Known Employer pilot to modernize and streamline the process for U.S. employers seeking to employ certain foreign workers,” said USCIS Director León Rodríguez. “Today, we’re partnering with a select group of representative organizations across a variety of industries to determine how we can improve efficiency and cut costs. If successful, we will continue to build on this trial program and promote robust trade, travel, and economic prosperity.”
DHS first announced in January 2015 that it would explore a Known Employer pilot under the United States-Canada Beyond the Border initiative. The pilot also was highlighted as a recommendation in a report from federal agencies submitted to the President in July 2015, Modernizing and Streamlining Our Legal Immigration System for the 21st Century.
The goals of the Known Employer pilot are to make the employment eligibility adjudication process more efficient while reducing delays for U.S. employers that wish to employ foreign workers under certain immigrant and nonimmigrant visa programs by:
• Reducing the amount of paperwork filed by employers and retained by USCIS;
• Promoting consistency in the adjudication of employment-based petitions and applications;
• Streamlining the adjudicative process to achieve greater efficiency within USCIS; and
• Providing greater support to CBP and DOS in support of greater efficiency and consistency at ports of entry and consular posts.
Under the Known Employer pilot, up to nine preselected employers will file applications requesting that USCIS predetermine that they meet certain requirements relating to certain immigrant and nonimmigrant visa classifications. When making this request, employers will create a profile in the Web-based Known Employer Document Library (KEDL), and upload documents relating to the requirements. USCIS officers will review and predetermine whether a prospective employer has met certain requirements relating to the visa classifications, and if USCIS approves the employer’s predetermination request, the employer may then file petitions or applications for individual employees without needing to resubmit company information with each petition or application.
Employers will not be charged any additional fees to participate in the Known Employer pilot. The pilot is scheduled to last for up to one year; however, USCIS may terminate or extend the pilot at any time. DHS and DOS will solicit ongoing feedback from the participants.
For more information, including a list of participating employers, see the Known Employer pilot page.
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February 22nd, 2016 by W. Scott Railton
BIG NEWS! We here at Cascadia are very excited for our friend and colleague Margaret Stock, who announced last week that she is running this year for the U.S. Senate seat in Alaska. Margaret will be absolutely terrific as a Senator for Alaska, and great for Washington D.C. If every state could send a person like Margaret to the D.C., things just might get done. Details on her campaign can be found at www.margaretforalaska.com.
Here’s the official press release for her campaign:
FOR IMMEDIATE RELEASE
Margaret for Alaska
Contact: Michael Edwards
ALASKA INDEPENDENT MARGARET STOCK ANNOUNCES BID FOR UNITED STATES SENATE
Anchorage, AK, February 16, 2016 — Longtime Alaskan and retired Army Reserve Lieutenant Colonel Margaret Stock today announced her bid as an Independent candidate for the United States Senate.
Stock promises to stand up to Washington and put Alaskan interests first. “Alaskans are resourceful people who focus on accomplishments rather than partisan politics. Our current leaders in Washington, D.C. are more concerned about special interests than Alaska or the nation as a whole. Partisanship and Federal overreach are out of control. Washington politicians are failing us, while they sit around blaming each other for their own lack of leadership,” Stock said. “There’s a lot riding on this election for Alaska’s economy and for Alaska’s future. More of the same party politics won’t fix it, but will only make things worse. We need independent leadership in Washington.”
In her first run for office, Stock cited her experience in the military as inspiration for how she will make Alaska and our nation more safe and secure. Stock said, “I’m not a politician. I’ve served our nation in the Army so I understand service and putting country before self. I’m guided by the interests of Alaska, and the founding principles of our nation.”
From educating our next generation of military leaders and developing award winning recruitment programs for our armed forces, to correcting governmental injustice and reuniting families, Stock has spent her career fighting to protect the security of our nation and standing up for everyday citizens — the same values that will drive her work in Washington. Stock intends to fight for the middle class, defend our personal privacy and liberty, protect Social Security, and stand up to powerful special interest money that drives the agenda in Washington.
Stock believes Alaskans understand the need to elect leaders who will focus on solving our biggest challenges. Says Stock, “As an Independent, I can better serve all Alaskans and help break the partisan gridlock that has infected our nation’s politics at virtually every level.”
A retired Lieutenant Colonel, Margaret Stock served her country in the U.S. Army Military Police Corps for 28 years. At West Point, she taught Constitutional and National Security law. She has testified before numerous Congressional committees and serves on important state and national boards and commissions. Ms. Stock is a graduate of the Harvard Law School, the Kennedy School of Government, and the Army War College. The oath she took to protect the Constitution and the nation is the oath she lives by today. She isn’t a politician, she doesn’t represent a party; Margaret Stock is a citizen of Alaska, a retired soldier, and a 2013 MacArthur Fellowship winner.
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January 28th, 2016 by Heather Fathali
Have a U.S. passport expiring in 2016 or 2017? The State Department advises you start the renewal process ASAP to avoid backlogs in processing times. 2016-2017 marks the 10-year anniversary of WHTI, the Western Hemisphere Travel Initiative, which among other things required (for the first time) that U.S. citizens present a U.S. passport when departing or entering the U.S. for air travel within the Western Hemisphere. It also imposed restrictions on the acceptable documents for presentation at U.S. land and sea borders. WHTI resulted in a mad rush of U.S. passport applications, and, because U.S. passports are valid for 10 years, the Department of State now foresees a surge in upcoming renewals.
Depending on your circumstances, U.S. passports may be renewed by mail, in person, and from abroad. The Department of State offers a user-friendly website to assist in the process: https://travel.state.gov/content/passports/en/passports/renew.html.
The New York Times offers a great report on the matter here: http://www.nytimes.com/2016/01/31/travel/passport-renewal.html?smid=fb-share&_r=0
Tags: Customs and Border Protection, DHS, DOS, Global Entry, immigration, passport, passport application, passport renewal, renew, renew passport, renewal passport online, State Department, Trusted traveler, U.S. Customs and Border Protection, U.S. passport, us department of state, us passport, US state department, USCIS, whti
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January 21st, 2016 by W. Scott Railton
This is headline news, as the case concerns President Obama’s announcement in 2014 that he will allow certain undocumented persons to obtain legal work authorization and shield them from deportation if (a) they have children who are U.S. citizens or lawful permanent residents and (b) if they can establish physical presence in the United States since January of 2010. It is estimated that this action could impact over 4 million persons living in the United States. The program, described as an exercise of prosecutorial discretion, has been called “Deferred Action for Parents of Americans” (DAPA).
Texas sued the United States government, and was joined by 25 other states, to halt this program. Soon thereafter, 15 other states, and the District of Columbia, filed in favor of the President’s actions. The matter has been making its way through lower courts, with Texas and its cohorts successful so far. The Obama Administration sought Supreme Court review, and now has it.
The Supreme Court will have to determine as a threshold matter whether the complaining states have standing to bring the suit. Basically, to have standing, there has to be an actual conflict to decide, between parties with real interests in the matter. States can’t bring a lawsuit just because they don’t like a federal government policy, particularly when that policy area is typically reserved to the federal government’s discretion, as is the case with immigration. However, so far, the lower courts have found standing, because of various impacts (e.g. driver licensing). The Obama Administration describes these as collateral consequences of State policies, and insufficient to grant standing.
If standing is found, the key question to be decided is whether the Executive Branch has overstepped its authority. Congress makes laws, and the Executive enforces them. The Obama Administration argues that Congress already delegated to it the authority to enforce immigration laws, and the actions are inherently authorized. Further, the Administration points to the lack of funding to complete full enforcement, and describes this as a “tacit acknowledgement” by Congress for the Executive exercise prosecutorial discretion.
Texas et al. acknowledge the concept of prosecutorial discretion, but describe the President’s actions as a sweeping overreach of power. They argue that discretion is to be exercised case by case, and not to whole populations.
There is an administrative law component that the Supreme Court will consider. Specifically, the Court is presented with the question of whether the Department of Homeland Security must go through public notice and comment procedures first, before implementing the action. This District Court judge who originally heard the matter in Texas determined that DHS had violated such procedures, and on this basis enjoined DHS.
Finally, and notably, the Supreme Court asked both parties to address whether the Administration’s announced immigration policy is in violation of the “Take Care Clause” of the Constitution, under which the President must “take care that the laws be faithfully executed.” One writer for the Washington Post described this as a bombshell.
Supreme Court experts say we can expect oral arguments towards the end of April, and a decision in late June. Both political parties have their national conventions in July.
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January 15th, 2016 by W. Scott Railton
The Department of Homeland Security has been busy recently in its attempt to amend immigration regulations related to business. This week, USCIS added to this effort by publishing rules in the Federal Register which intend to improve the administrative process for the E-3, H-1B1, and EB-1 Outstanding Professor/Researcher categories. The rules go into effect on February 16, 2016.
In a nutshell, the rules are intended to put these nonimmigrant categories on common ground, administratively, with similar temporary work authorization categories for professionals (e.g. H-1B, L, E, and O). Additionally, modifications have been made to the acceptable criteria for Outstanding Professor and Researcher category, allowing applicants to provide “comparable forms of evidence” in order to establish their qualifications.
The E-3 category is a special nonimmigrant category reserved for Australian nationals for specialty occupation categories. E-3 applicants can apply directly at a Consulate, with appropriate documentation, and bypass USCIS altogether initially. However, in some situations, where travel abroad is undesirable, the E-3 can be processed with USCIS. The H-1B1 is similar, in that it is for specialty occupation workers from Chile or Singapore, and was also established by Treaty. The rule also has application for persons in the CW-1 category, which is for persons from the Commonwealth of the North Mariana Islands.
A change that stands out here is applicants for extensions in these categories will now receive the 240 day automatic work authorization period, subsequent to status expiration, if their renewal application is timely filed before the expiration date. This is consistent with many other nonimmigrant work authorization categories. Previously, persons in the E-3, H-1B1 and CW-1 categories had to pay great attention to filing many months in advance for an extension, in order to get an approval through before their expiration date. It’s still best practice to file extensions as early as possible, which is probably earlier than most would think.
The amendment to the Outstanding Professor and Researcher category is welcome. In my experience, applicants sometimes have remarkable evidence to present which doesn’t quite fit into the categories of evidence already called out by the regulation. This category, unlike the ones mentioned above, applies to Professors and Researchers pursuing green cards (permanent residence).
Here is DHS’s announcement, with further details:
The Department of Homeland Security (DHS) amended its regulations today to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.
This final rule, posted to the Federal Register today and effective on Feb. 16, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.
Specifically, this final rule amends DHS regulations as described below:
• DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
• DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
• DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
• Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
• Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.
This final rule does not impose any additional costs on employers, workers or any governmental entity.
Further, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications.
Additionally, this rule minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers.
Finally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions.
“We constantly strive to improve our processes and ensure fair and consistent access to immigration benefits,” U.S. Citizenship and Immigration Services Director León Rodríguez said. “This Enhancing Opportunities rule removes unnecessary hurdles that place workers at a disadvantage and will be beneficial to both employers and their workers.”
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December 31st, 2015 by W. Scott Railton
The Department of Homeland Security and U.S. Citizenship and Immigration Services today released a proposed regulation to modify many aspects of the immigrant and nonimmigrant work authorization process. The rule weighs in at a hefty 181 pages, and addresses longstanding issues related to foreign worker mobility. This is a very significant proposal for employment based immigrants, and the employers that employ them.
A two month comment window will open with the publication of the proposal, once published in the Federal Register.
The proposed rule attempts to better implement two laws: the American Competiveness and Workforce Improvement Act of 1998 (“ACWIA”) and the American Competiveness in the Twenty-First Century Act of 2000 (“AC21”). Specifically, the rule attempts in large part to address some the natural consequences of the multi-year waits for immigrant visas under the Immigration and Nationality Act’s quota system. As of this writing, an Indian national with an EB-3 professional approval (e.g. Bachelor’s degree) has to wait over a decade for an immigrant visa to become available. Here’s what the rule says on this:
This proposed rule is intended, in part, to address some of the challenges that flow from the statutory limits on immigrant visas, consistent with existing DHS authorities. [ p. 47]….[S]imply put, many workers in the immigrant visa process are not free to consider all available employment and career development opportunities. This effectively prevents U.S. employers from treating them like the high-potential individuals the employer hired them to be, thus restricting productivity and the promise they offer to our nation’s economy and undermining the very purpose of the employment-based immigrant visa system that prioritizes such workers for LPR status. The lack of predictability and flexibility for such workers may also prevent them from otherwise investing in and contributing to the local, regional, and national economy or fully assimilating into American society. [p. 50]
The proposal takes many existing USCIS practices, previously implemented through a mish-mash of agency memos, and for better or worse, tidies them up into regulations. Perhaps more significantly, the proposal creates several new rules regarding work authorization and employment authorization documents, in an attempt to improve career advancement opportunities for foreign workers, as well as worker mobility. The current administration has on multiple occasions said that the government should take steps to address natural career progression, in the context of visa backlogs. Unfortunately, the proposed rule also seems to let the agency off the hook for adjudication delays, such as in the case where it strikes the 90 day rule for adjudication of employment authorization documents. More on this below.
The results: some good news, some bad news, and a lot of wait and see. The possibility of litigation before implementation exists. We’ll just have to see how it shakes out after the two month comment period. You can be sure we will be following this closely.
Here are some highlights on initial review:
• The creation of an automatic work authorization of 180 days for a timely filed Employment Authorization Extension, as well as the end of the 90 day obligation to adjudicate rule for the agency. This year the agency has been taking more than 90 days to issue EADs, as it has fallen behind in so many things, and this has forced HR Departments to stop employing nonimmigrants who reasonably thought they filed an extension in time.
• The creation of a new supplement for I-485 Adjustment of Status applications, for establishing that employment continues to be the same as petitioned for, or a “same or similar occupation”. The agency has really focused on building a body of law (or guidance?) in this regard this past year.
• Clarification and improvements upon the retention of priority dates for subsequent petitions. Also, softer rules benefiting beneficiaries of approved I-140s, against revocation, if 180 days have passed since approval.
• A one-time nonimmigrant grace period for 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrants, to find new jobs.
• A “compelling circumstances” EAD for E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrants, to be granted on a discretionary basis.
• Applying for a professional license may be satisfactory for H-1B purposes, if it can be demonstrated that the license can’t be granted without a social security number. The agency’s current fix for this situation is to only grant one year of H-1B time, thus forcing a renewal sooner than the typical three years.
• USCIS unfortunately appears to be tightening the rules about original petitioners, labor certifications, and I-140s. This may affect situations involving mergers, acquisitions, and changes in business structure.
• The rule calls out specific rules for recapturing time outside the country, for H-1B purposes. Basically, an H-1B holder is entitled to six years of H-1B time, and if they spend part of that time outside the country, that period of time can be “recaptured”. The rule provides more specifics on process, which I anticipate will just mean a more defined, and therefore higher burden of proof.
• The rule addresses interpretations related to determining cap-exemptions for cap-exempt employers. For the health care sector and research organizations, this will need to be reviewed closely, and may well merit comment before the rule becomes final.
• The rule focuses on whistleblower provisions for H-1B workers, relating to rate of pay. Basically, the agency seems to be encouraging more whistleblowing, to make sure employers are conforming with labor condition application requirements. We’re always careful to advise on employer responsibility in this regard.
• I-9 documentation rules will be changed to account for work authorization changes enabled elsewhere in this regulation. Its always a challenge for employers to stay up on the latest changes with I-9 matters.
• Ten day grace period for H-1Bs, as set in regulation, to allow them to enter the country before working, and depart within 10 days afterwards, is extended to several other nonimmigrant work authorization classifications (Es, Ls, TNs).
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