At a program held today at Seyfarth Shaw’s offices in Chicago, partners Jim King and Leon Rodriguez discussed rapidly developing changes in business immigration in the first 100 days of the Trump administration.  King serves as co-chair of the Business Immigration Group and Rodriguez is the most recent director of United States Citizenship and Immigration Services.

King and Rodriguez identified changes flowing from a series of executive orders issued by President Trump since inauguration which direct changes in areas including arrival of foreign travelers in the United States, screening of visa applicants and immigration enforcement in the interior of the United States.  King and Rodriguez also discussed possible policy changes that could operate to change and possibly restrict the availability of employment-based visas to the United States.

Continue Reading SEYFARTH BUSINESS IMMIGRATION GROUP PARTNERS JIM KING AND LEON RODRIGUEZ DISCUSS IMMIGRATION TRENDS BEFORE CHICAGO AREA BUSINESS LEADERS

Seyfarth Synopsis: If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.

Background

A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only “essential” government workers would report to work until Congress passes a spending bill.

U.S. Citizenship and Immigration Services (USCIS)

USCIS would be minimally impacted because it is largely a user-fee funded service.  The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required — such as the H-1B that requires a Labor Condition Application (LCA) -­may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS  issued guidance suspending the “three day rule”  for any case affected by the shutdown.  Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.

Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.

Department of Labor

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications).   OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.

Department of State (DOS)

Visa issuance should continue, at least temporarily.  Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.

Department of Justice (DOJ)

DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.

Seyfarth Synopsis: The EO orders the Departments of State, Justice, Labor, and Homeland Security to propose new rules and issue new guidance to “protect the interests of U.S. workers” and “promote the functioning of the H-1B visa program.”

On Tuesday, April 18, President Trump signed an Executive Order (EO) instructing the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance “as soon as practicable and consistent with applicable law” to “protect the interests of U.S. workers,” within the administration of the U.S. immigration system. Moreover, the EO instructs the agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid” foreign nationals.

The EO neither creates any specific new requirements for employers nor directs the affected agencies to take any action other than prepare substantive proposals at a future uncertain date. According to statements made by the President and Senior Administration Officials, the EO aims to dismantle the computer generated H-1B visa lottery system and the current four-tiered prevailing wage system as well as ferreting out fraud and abuse within the existing H-1B program.  Implementation of such recommendations would require congressional action.

Seyfarth Shaw will continue to closely monitor the Departments reactions to the EO, and we will provide updates as developments occur.

Seyfarth Synopsis: USCIS completes the lottery process and receives 199,000 H-1B cap petitions.

On April 17, 2017, United States Citizenship and Immigration Services (USCIS) announced that it received 199,000 H-1B petitions to meet both the Master’s and regular H-1B quotas (or “caps”) for Fiscal Year 2018, which begins on October 1, 2017.  This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master’s cap.  However, the number of petitions decreased this year, down from more than 236,000 petitions filed for Fiscal Year 2017.

In addition, USCIS announced that they completed a computer-generated random selection process — the lottery — for all cap-subject filings received from Monday, April 3 through Friday, April 7, 2017 to determine which filings to adjudicate.  USCIS first conducted the lottery process for H-1B petitions subject to the Master’s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master’s degrees or higher degrees.  Any Master’s cap petitions not selected in the Master’s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.  USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.

For additional background information on the H-1B visa program and the cap, please see our previous One Minute Memo titled, “H-1B Work Permit Filings: Will You Beat the Cap?”

Seyfarth Synopsis: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”).   This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.  Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.

In light of the Trump Administration’s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.  To be clear, the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement  (“ICE”) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.

In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE’s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit [1] as well as it’s E-Verify Monitoring and Compliance branch [2]. Additionally, the Department of Justice’s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.

Continue Reading Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents

On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.  Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President’s Executive Order.  Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President’s most recent Executive Order and those from Iraq.

Continue Reading New Department of State Cable Implements Extreme Vetting Measures

Seyfarth Synopsis: Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses’ concerns when their employees travel.  In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information.

Overview

United States’ Customs laws and regulations (See, 8 U.S.C. § 1582, 19 C.F.R § 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers. Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel.  “Supreme Court decisions have upheld the doctrine that CBP’s search authority is unique and does not violate the fourth amendment’s protection against unreasonable searches and seizures.”[1] This exception allows CBP to conduct “routine” searches on luggage, devices, vehicles or persons without a warrant. “However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully.”[2]

Who May Be Chosen for an Inspection

United States Customs and Border Protection (“CBP”) guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search.  Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A 2012 CBP Directive noted that “in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border”.

At this time, CBP has not articulated policies that consider a traveler’s nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.

What Will Occur During the Search

The manner in which a search is conducted may vary widely depending on a number of factors. A customs official may simply conduct a search through the device and then return it to you.  At the other times, CBP may elect to take temporary custody (‘detention’) of the device for further examination.  If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time.

Continue Reading Searches of Devices at the U.S. Border

Seyfarth Synopsis: Federal judges from Hawaii and Maryland have issued nationwide Temporary Restraining Orders (TROs) effectively blocking the implementation of the Trump administration’s revised travel ban, which was scheduled to take effect on March 16, 2017.

Late on Wednesday, March 15, Judge Derrick K. Watson of the Federal District Court in Honolulu issued a nationwide TRO suspending the implementation of the Trump administration’s revised Executive Order (EO) and associated travel ban. Early Thursday morning, Maryland federal Judge Theodore D. Chang issued a separate TRO blocking key provisions of the EO from taking effect nationwide. Both decisions took the position that the revised EO violates the First Amendment because it was designed to discriminate against Muslims. According to Judge Watson, even the new order was “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”

Continue Reading Federal Courts Temporarily Block the Trump Administration’s Revised Travel Ban

Seyfarth Synopsis: The UK Parliament has passed the EU Withdrawal Bill, paving the way for the Government to invoke Article 50, the mechanism for leaving the European Union, by the end of March 2017. 

On March 13, 2017, the UK Parliament passed the European Union (Notification of Withdrawal) Bill.  The Bill’s purpose is to allow the Prime Minister to notify the European Union of the United Kingdom’s intention to withdraw from the European Union, through invocation of Article 50 of the Lisbon Treaty.

The British Prime Minister, Theresa May, has previously indicated that she wishes to make the notification, triggering such withdrawal, before the end of March 2017.  The passing of this Bill now makes such a timetable likely.

What Will Happen Next?

Once Article 50 has been invoked, the United Kingdom will enter into a period of negotiation with the European Union.  The parties have a period of two years to negotiate an exit agreement for the UK.  If no agreement has been reached by the end of the two year period, all EU Treaties that apply to the UK will be void, unless the European Council (comprised of the Heads of all Member States) agrees to continue the negotiations.

Continue Reading U.K. Parliament Passes Brexit Bill

USCIS recently announced that the agency will temporarily suspend premium processing for all H-1B petitions beginning on April 3, 2017.  USCIS indicates the purpose of the suspension is to process H-1B petitions that have been pending for many months, including in particular those approaching the 240-day automatic extension limitation, which would thereby reduce overall H-1B processing times.  Please find below a list of frequently asked questions with our insights.

1.  What is the effective date of the suspension?

The premium processing suspension is effective on April 3, 2017.  The last day that USCIS will accept H-1B petitions filed with premium processing is Friday, March 31, 2017.

2. How long will the suspension last?

USCIS states that the suspension may last up to six months.  USCIS imposed a similar suspension in the past and lifted the suspension early.

3.  Does the suspension apply only to H-1Bs or other visa categories?

The suspension is limited to H-1B petitions only.  This includes H-1B petitions seeking to extend status, amend status, change status, consular process, or change employers.

4.  Can H-1B petitions be filed with premium processing in the month of March?  If so, will USCIS continue to honor premium processing cases if they are still pending beyond April 3rd?

Yes, USCIS will accept an H-1B petition filed with premium processing on or before Friday, March 31, 2017.  We anticipate that any H-1B petition filed with premium processing that is receipted on or before March 31st will receive the full benefit of premium processing, even if the adjudication continues beyond April 3rd.  However, based on the posted USCIS announcement, the agency has discretion to refund premium processing fees if the agency has not taken adjudicative action on the case within  the 15-calendar-day premium processing period.

Continue Reading USCIS Suspends H-1B Premium Processing Beginning April 3, 2017