The President’s Executive Actions for Employers and Employees

December 9th, 2014 by W. Scott Railton

Businesses and professionals have asked us how the President’s executive actions may impact them. The language and memorandums are very promising.  However, we will have to wait and see how things play out. Many of the particulars still have to make it through the Federal Register publication process, which includes agency drafting of rules and required public comment periods.

Things to know:

1. Resources

Probably the best introductory resource is the Department of Homeland Security’s dedicated page, which references a number of different memorandums and actions.  For the DHS memo which addresses changes for employers and high skilled workers, visit here. The White House’s website and dedicated webpage is also a good resource.  The American Immigration Council has published a comprehensive summary of the President’s actions.

2. The Law and Politics of the Executive Action

Seventeen states, led by the Texas Attorney General, filed a lawsuit last week to stop the President’s actions, based on claims that his actions are unconstitutional, as an overreach of his authority. Our take, in a nutshell, is the President’s actions are constitutional, due to the existing broad delegation of authority in the Immigration and Nationality Act.  If Congress wants to change things, it will need to pass a law.  Some judges may disagree, at least in part, and some of the President’s actions are edgier than others, and so we’ll wait and see.

The House of Representatives passed a bill last week, by a small majority, voting on partisan lines, which found the actions unconstitutional. It is unlikely the bill will go anywhere. Even if it passed the Senate, the President presumably would veto the bill.

3. Timing

It is going to take a while for the actions to take effect. In many cases, federal regulations and processes have to be drafted, and published in the Federal Register first for comment. For less-specific orders, such as where the President ordered agencies to consult to streamline immigration processing measures, some activity may be seen after the turn of the year. Of course, it’s possible the litigation may slow things down.

Some of the proposals to help high skilled workers have been in the making for a while, such as H-4 work authorization for spouses of persons with approved I-140s. That should be coming soon, and would likely be of interest to some.

In 2012, the Deferred Action for Childhood Action program was announced in June, and the agency began accepting applications two months later. It will be interesting to see how fast the affirmative application processes can be implemented here.

4. Specific measures Impacting Businesses

a. Perhaps the most noteworthy possible change related to business is the possibility of “preregistration” for those who have an approved I-140 but don’t have a current priority date. This has been mentioned in stakeholder briefings from the White House, but hasn’t explicitly made it into the press releases or other announcements. This would allow a process to apply for an employment authorization/travel document. It is possible this will be written into the regulations, but we’ll have to wait and see. It’s also possible the proposal needs to be further vetted before release, as the statute on adjustment of status is relatively clear. Such an action could impact many persons who are stuck in long waits, and could reflect the White House statements concerning relief to 400,000 workers.

b. Guidance is likely to be issued that will allow a more liberal view of portability for position same or similar position changes, when persons switch positions with after having an immigrant visa petition. This would provide more confidence to employers and beneficiaries in taking promotions and other natural career changes.

c. The President has asked the agencies involved in issuing visas to come up with a plan to coordinate between them to streamline the application process (e.g. single data entry, background checks). The expectation is measures will also speed up the process.

d. The agencies have been directed to take measures to favor entrepreneurs, such as greater use of the National Interest Waiver provisions for job-creators.

e. The PERM labor certification system is supposed to be reevaluated and amended. This sounds promising, but it could take a long time to have impact, due to federal regulation and internal system processes. It has been asked that the process include harmless error provisions, which would at least cover clerical errors. Ideally, we’ll see an expanded use of Schedule A. For instance, we have lobbied for use of Schedule A with regard to physicians practicing in underserved areas.

f. There may be a number of revisions to Optional Practical Training (OPT) for foreign students. The DHS Secretary has directed the agency to expand the list of STEM degree programs eligible for automatic OPT extensions of 29 months for certain employers (which would include Providence). That period may be lengthened too, though no alternative length of time has been said. There also may need to be closer nexus between degree and training than which has been required to date. There are also indications of labor market protections being implemented related to OPT usage.

These are just some of the highlights. There are other reforms which may come in relation to the use of parole, military enlistment, and other areas. Of course, the centerpiece of the proposal is the Deferred Action programs for parents of U.S. citizens and lawful permanent residents, and the expansion of the rules for the Deferred Action for Childhood Arrivals. Experts say these latter two proposals could create work authorization for roughly 5 million persons.

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Executive Action Plan for U.S. Immigration Reform

November 21st, 2014 by W. Scott Railton

After much deliberation, press, and controversy, President Obama announced tonight that he will take executive action to improve the United States’ immigration system. His speech, and various briefing materials, can be found at the White House’s website.  Specifics on the action plan, including border security measures and applications processes, can be found here at the Department of Homeland Security’s website.

Note:  many of the affirmative relief measures will take some time to implement, as the government (and principally Department of Homeland Security) has to create forms, systems and processes for individual applications.  Where the issuance of a regulation is required–which is only true in some instances–there will be lag time to implementation.

The plan is politically controversial.  The President has legal authority to implement broad measures—the question is just how broad that authority goes? As he said in his speech, most of his predecessors have exercised executive action in the context of immigration. The Immigration and Nationality Act delegates broad discretionary powers to the President.  Further, prosecutorial discretion is fundamental to the responsible implementation and enforcement of immigration laws, which falls to the Executive Branch. The limits of these powers may be tested. The Department of Justice issued a legal memorandum, dated November 19th, 2014 (yesterday), which concludes the President can (1) prioritize removals as an act of prosecutorial discretion, and (2) can propose deferred action for relatives of U.S. citizens and lawful permanent residents; but (3) cannot authorize deferred action for parents of DACA recipients, as the President proposes.

The President’s Executive Action is presented as having three critical elements: (1) cracking down on illegal immigration at the border, (2) deporting felons, not families, and (3) accountability – criminal background checks and taxes. Most notably, the action may allow as many as 4 million (or more) persons to apply to come out of the shadows and obtain work authorization, and become part of the tax system.

Our business clients are likely to see significant benefits from the Action Plan, as presented. The Action Plan has language favoring enhanced opportunities for foreign entrepreneurs. The Plan intends to strengthen and extend on-the-job training for STEM graduates from U.S. universities. Portable work authorization shall be made available for high skilled workers awaiting lawful permanent resident status, as well as for their spouses.

The Action Plan also includes measures to improve border security and promote public safety, by focusing on persons who are threats to society. The Action Plan also will seek to promote citizenship public awareness. It has language which provides relief to spouses and children of U.S. citizens seeking to enlist in the military. The Plan also expand the already existing Deferred Action for Childhood Arrivals program to cover additional DREAMers.

Reforms are much needed. In some cases, these measures don’t go far enough, such as where discretionary relief is limited to those with U.S. citizen relatives, or with the range of possible reforms that could help business. There is much good news here for many. I suspect in time many of these measures will be widely accepted, as has seemed to be the case with DACA after two years.

The need for Congress to act on immigration remains. I was on Capitol Hill last week meeting with Congressional offices to discuss immigration matters. My impression, based on the news and these meetings, is that a comprehensive immigration bill is unlikely in the near future. The Action Plan therefore may serve the interests of the people, until Congress can pass a bill, whenever that shall be.

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I-9 Forms Ruled Admissible To Support Removal Charges

October 31st, 2014 by W. Scott Railton

The Board of Immigration Appeals rules this week that a Form I-9 (Employment Eligibility Verification form) is admissible in immigration proceedings as evidence to establish removability. The case is Matter of Bett, 26 I&N Dec. 437 (BIA 2014). This decision may have widespread implications for persons seeking immigration benefits, as well as for persons seeking relief from removal. The issue has been coming up increasingly at local U.S. Citizenship & Immigration Services field offices.

The I-9 Form is used to verify a person’s work authorization. It is completed at time of hire by new employees. The new employee must state their status in the United States. The form offers an opportunity to declare that a person is a U.S. citizen. Of course, this box gets checked sometimes by persons who are not U.S. citizens. This can be done intentionally or not intentionally, and may also be completed later by an employer. If a person makes a false claim to U.S. citizenship, they are inadmissible to the United States. Thus, if an I-9 is presented in removal proceedings, the Immigration Judge may now try to determine whether the form holds a false claim to citizenship.

The Court concurred with the 8th Ciricuit’s decision in Downs v. Holder, 758 F.3d 994 (8th Cir. 2014), and said the decision is binding against the Respondent Betts. The 8th Circuit concluded that I-9s are admissible in proceedings to enforce the Immigration and Nationality Act.

We have heard of reports of USCIS officers contacting employers to request copies of I-9s, to help them with the adjudication of applications for benefits. With this case, there is an increased chance that DHS attorneys and officers will seek to review I-9s in relation to fulfilling their duties under the Immigration and Nationality Act.

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Optimizing TN and L Petitions Submitted to CBP

September 17th, 2014 by W. Scott Railton

U.S. Customs and Border Protection is attempting to steer TN and L applicants to certain ports of entry and pre-flight inspection facilities in Canada for “optimal” processing. TN and L petitions can still be submitted at any Class A port of entry. However, CBP has designated certain ports of entry “that will ensure a more efficient approach to processing the high volume of TN and L applicants.”

The list includes major airports in Toronto, Vancouver, Calgary, and Quebec, as well as ten major land port of entries, including Highgate, Derby Line, Alexandria Bay, Peace Bridge, Rainbow Bridge, Champion, Detroit Canada Tunnel, Detroit Ambassador Bridge, Blaine Peace Arch, and Sweetgrass, MT. The CBP website also lists preferred time for the presentation of petitions, with most ports favoring times in the middle of the week. They really need to accommodate applicants on the weekend as well, since many working in the U.S. will drive to the border to renew over the weekend.

Time will tell how this plays out, but I am skeptical. In the old days, the ports used to have Free Trade Officers who were expert in NAFTA matters.  They would usually take a reasoned approach to adjudications, and were amenable to hearing from attorneys on more technical points. Since 9/11, that has fallen by the wayside, and there have only been limited attempts by the agency to cultivate and put forth such expertise. Meanwhile, adjudications at the border have become increasingly erratic. These tendencies of border adjudicators have led some attorneys to opt for the less convenient processing that is possible with USCIS.

If the agency is going to do this, I would suggest that it is needed at more than 10 land ports. There are many, many more ports of entry on the Canadian border, and they all should have expertise in NAFTA matters.

Further, it is a little concerning that CBP highlights as the impetus for this program “the need for a more efficient approach to processing high volume of TN and L applicants.” Efficiency can mean many things, sometimes good, sometimes bad, but it’s not usually the first word that comes to mind when someone seeks an adjudication of a matter. Fairness is what most people seek first.

All this said, building a bank of NAFTA expertise within the agency is much needed, and this is possibly a start.

 

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U.S. Department of State Raises Certain Filing Fees

September 3rd, 2014 by W. Scott Railton

The Department of State (DOS) announced a proposed rule, effective September 6, to change several filing fees for visa applications and other consular services.

The most significant change is the administrative processing fee for formal renunciation of U.S. citizenship is increasing 422%, from $450 to $2350. DOS says that demand for this service has increased dramatically in the past few years, almost certainly in relation to IRS initiatives and new laws to collect taxes from citizens outside the U.S.

Overall, the costs of family based visa applications is increasing. The proposed fee for immigrant visa applications based on family relationships will increase $95, from $230 to $325. The affidavit of support review fee is rising from $88 to $120. Similar K visa applications for fiancee and family reunification are rising $25, from $240 to $265. These fees are in addition to the fees paid to U.S. Citizenship and Immigration Services (USCIS) for the initial stages of the application process.

Some application costs will be decreasing. For example, the fee for an E visa Treaty-Trader or Treaty Investor visa is dropping $65, from $270 to $205.

The fees are all proposed, and comments can be sent to fees@state.gov. The comment period is open until at least October 21st.

For the full published Federal Register notice, visit http://www.gpo.gov/fdsys/pkg/FR-2014-08-28/pdf/2014-20516.pdf.

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USCIS Issues Guidance on H-1B Petitions for Nursing Occupations

July 25th, 2014 by W. Scott Railton

USCIS issued guidance recently for determining whether or not a nursing position meets the definition of an “specialty occupation.”  Specialty occupations are typically eligible for H-1B and E-3 professional work visas. The guidance advises that with the increase of nursing specialization, adjudicators need to take a careful case-by-case approach to analyzing whether an individual position is a specialty occupation.  This is good news in light of the challenges hospitals and medical facilities have faced in obtaining H-1Bs for key nurse personnel.

The memo begins by clearly stating that the standard Registered Nurse position does not qualify for H-1B classification. The memo then notes that there is are three typical paths to obtaining an RN: a bachelor’s of science degree (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program. The memo also notes that the increasingly, nurses are obtaining the Bachelor’s degree first, and that the private sector favors more highly educated nurses.

The memo lists a number of specializations in nursing: addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, peri-operative, rehabilitation, and other nurses. Depending on the facts of each case, some of these specializations may qualify as specialty occupations. The memo also offers a “non-exhaustive” list of Advanced Practice Registered Nurse occupations that may be specialty occupations: Certified Nurse-Midwife (CNM), Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

The memo advises adjudicators and stakeholders that the the appropriate evidentiary standard for determining whether a position is a specialty occupation is the “preponderance” standard, which means whether it is more likely than not. To evaluate the cases, adjudicators are instructed to weigh such factors in the record as (1) the nature of the petitioner’s business; (2) industry practices; (3) a detailed description of the duties to be performed within the petitioner’s business operations; (4) advanced certification requirements; (5) ANCC Magnet Recognized status; (6) clinical experience requirements; (7) training in the specialty requirements; and (8) wage rate relative to others within the occupation.

Time will tell how this plays out, but this memo opens the door for employers to pursue H-1Bs more confidently in cases where Registered Nurses are particularly specialized.

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Washington State Legalizes Marijuana; Immigration Authorities Have Not

July 3rd, 2014 by W. Scott Railton

The Seattle Times is reporting that Washington State’s first licensed marijuana dealer will open its doors on Tuesday. From an immigration standpoint, though, nothing has really changed in regards to marijuana.

The possession and use of marijuana violates the Controlled Substances Act, and can create a basis for inadmissibility. If the government has reason to believe someone traffics in marijuana, they can deny admission to that person, and possibly even their family members. Persons can also be denied admission for being a drug abuser.

Various immigration applications ask questions that can create issues in regards to marijuana use. For instance, the naturalization application asks whether you have ever committed a crime or offense for which you were not arrested–a difficult question for any applicant, really. Border officers have a great deal of discretion in assessing the legitimacy of a person’s visit to the United States. It will likely not be deemed an acceptable to seek entry to smoke some of Washington’s legalized weed.

Time will tell how this all plays out. The U.S. Attorney General’s Office has issued some general advisories to agency which suggest a bit of a hands-off, wait and see approach. However, the immigration process is different than most if not all other Government-person interactions, as the Government has a great deal of latitude in what they ask and what they decide. I expect that we will start hearing stories over the next few months of non-citizens who encounter issues with their applications or entry in relation to Washington’s new law and their use or intentions.

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Work Authorization Coming for Certain H-4 Dependents of H-1Bs

May 7th, 2014 by W. Scott Railton

The Department of Homeland Security announced today that it is opening for comment rules that will ultimately allow certain H-4 dependents to apply for work authorization.

As proposed, eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

a.) Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

b.) Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

This is a move in the right direction, albeit to a limited group.  If the DHS’s goal is to attract and retain highly skilled workers, there’s a strong argument for opening up work authorization for **all** H-4 dependents. In today’s economy, many couples will not move somewhere unless both can work.

The Government also announced a proposed rules update for E-3 Australian and H-1B1 workers. These are professionals similar to the H-1B workers.  Perhaps most notably, the agency now intends to allow persons in that status the 240 day grace period of work authorization which is permitted for other nonimmigrant work categories.  The Government also proposes to modify its rules on evidence for EB-1 Outstanding Professors and Researchers.

For the full DHS announcement, visit here:

http://www.dhs.gov/news/2014/05/06/dhs-announces-proposals-attract-and-retain-highly-skilled-immigrants

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USCIS Receives 172,500 H-1B Applications in First Week

April 12th, 2014 by W. Scott Railton

USCIS announced this week that it received about 172,500 applications for H-1Bs for U.S. employers in the first week of availability for Fiscal Year 2015. The statutory cap is 65,000 slots for regular filings, and there are an additional 20,000 slots for graduates of Master’s programs or highers from U.S. institutions of higher education. The 20,000 quota was also filled. Consequently, a lottery will ensue, based on a computer-generated random process. For those who are not selected, USCIS will return the petition with filing fees.

H-Bs are specialty occupation worker petitions. Persons with at least a bachelor’s degree or the equivalent may hold an H-1B for at least up to six years, during which time some employers will sponsor them for permanent residence. The application process includes significant filing fees, sometimes rising above $3000, and employers must guarantee the U.S. government and the employee that they will pay the greater of the prevailing or actual wage for the position.

The fact that the cap filled in the first week is really not a surprise. This has happened the past few years. The number of applications filed though has increased significantly, to the point that the lottery is very real for employers and beneficiaries. Master’s grads from U.S. schools will have a bit of an edge, though. Even if they miss out on the first 20,000 spots, they then may be selected in the 65,000 pool.

What does this mean going forward? For one, employers will increasingly file for H-1B petitions for recent college graduates, even if they have more than a year left to go of optional practical training work authorization. Science, Technology, Engineering and Mathematics (STEM) grads can extend their work authorization for 17 months beyond their first year grant of work authorization. Employers who have already invested in employee training for a year won’t want to buy just one lottery ticket going forward, if the chance of selection is so uncertain. So, I expect we’ll see even more early filings for H-1Bs in years to come, until the system gets a fix.

Another issue is the once-per-year application ritual itself, otherwise known as “H-1B season.” Business doesn’t operate this way.  Business needs are ever-evolving throughout the year, which Congress recognized once upon a time when it passed the American Competitiveness in the 21st Century Act.  Nowadays, the The H-1B program doesn’t offer much use to the employer who determines they need a specialty occupation worker sometime later in the year.

There needs to be some way that employers can bring a key person from outside of the country during the rest of the year, without that person having to prove they are extraordinary, exceptional, or that their employment will serve the national interest. The H-1B system as currently operating lacks this needed flexibility, and that hurts the U.S.’s ability to compete in the global labor market.

Now, there are cap-exempt employers, including non-profit research organizations, institutions of higher educations, and organizations affiliated with institutions of higher education. Many hospitals fall into the latter category, due to their affiliations with medical school and nursing programs. This is noteworthy for these types of employers, and for prospective H-1B employees who might meet their HR needs.

One possible temporary fix may be to create more cap exemptions. For instance, if there is a known shortage of STEM graduates in the labor pool, perhaps a STEM exemption or STEM cap is something to look at.

Talent knows no boundaries, and for the U.S. to remain an innovator and leader of economies, there needs to be a means for employers to employ certain specialty occupation workers throughout the year.

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USCIS Announces Procedures for April 1st H-1B Filings

March 26th, 2014 by W. Scott Railton

U.S. Citizenship and Immigration Services issued a press release today, saying it will accept cap-subject petitions for H-1Bs on April 1st. The filing window will again be five business days, until April 7th. Premium processing will not commence until April 28th.  We are in the process of preparing many applications for clients for the April 1st filing date.

The annual H-1B week is really not a way to run an effective immigration system, from the business immigration standpoint.  Once the numbers are used up, they’re gone for another year, which leaves employers with one less immigration option for the other 51 weeks of the year.

Here’s the press release:

USCIS to Accept H-1B Petitions for Fiscal Year 2015 Beginning April 1, 2014
Release Date: March 25, 2014

Premium Processing for Cap-Subject Petitions to Begin by April 28, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency is prepared to use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. For more information on premium processing for FY 2015 cap-subject petitions, see the USCIS Alert.

H-1B petitioners should follow all requirements to avoid processing delays and possible requests for evidence. USCIS has detailed information, including an optional checklist, to assist in completing and submitting an FY 2015 H-1B petition. The processing worksheet is available on the USCIS website, www.uscis.gov.

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.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B FY 2015 Cap Season Web page. Or call the National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TDD for the hearing impaired).

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.

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