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Seyfarth Synopsis: This blog post is intended to enable employers to identify any current employees and employment candidates who may require H-1B work permit sponsorship before October 1, 2019. We recommend that employers identify any such candidates as soon as possible, as on April 2, 2018, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the fiscal year 2019 H-1B quota (which begins on October 1, 2018). It is likely that, as in previous years, USCIS will receive H-1B requests far in excess of the annual quota within the first week of filing eligibility, in effect resulting in a random lottery-type selection process. This occurred last year in the 2018 H-1B cap, which was reached in the first week of filing eligibility based on USCIS receiving over 199,000 H-1B cap petitions. The most conservative and recommended approach is to submit all 2018 cap cases during the first week of filing eligibility, which begins on April 2, 2018.

Background

There is an annual limit on the number of H-1B petitions that USCIS can approve during the government’s 2019 fiscal year (beginning October 1, 2018 and ending September 30, 2019). The H-1B cap for fiscal year 2019 is 65,000 (of which about 6,800 are reserved for nationals of Chile and Singapore under Free Trade Agreements with those countries). USCIS will begin accepting petitions for FY 2019 on April 2, 2018.

There is an additional quota of 20,000 H-1Bs reserved for persons holding a master’s degree or higher awarded by an accredited college or university in the United States. To be eligible for the “master’s cap,” the employee must have completed the master’s degree program prior to the filing date. This additional quota of 20,000 H-1Bs has historically not been exhausted as early as the general H-1B quota of 65,000. However, both the regular cap and the master’s cap were exhausted last year during the first week of availability.

If USCIS receives more than 20,000 H-1B petitions towards the so-called master’s cap, a separate lottery process is applied. USCIS will apply the random selection process to the master’s cap petitions prior to conducting the regular H-1B lottery. Any master’s cap petitions not selected in the master’s lottery will be eligible for selection in the regular H-1B lottery, effectively being granted two opportunities at H-1B status.

Exceptions

With some exceptions, current H-1B workers are not subject to the annual cap. Non-cap cases include H-1B workers extending their status, changing from one H-1B employer to another, changing the terms of existing H-1B employment, or filing for a second (concurrent) H-1B position. In addition, foreign nationals seeking to work for an institution of higher education, for a related or affiliated nonprofit entity, or for a nonprofit research organization or a government research organization are not subject to the H-1B cap.

Anticipated Unavailability of H-1B Work Permits Means Filing Early

In 2008, USCIS announced that it would apply the lottery process to all H-1B petitions received during the first five business days of the cap period, even if enough petitions were received to fill the annual quota on the first day of the filing period (i.e., April 1). We do not know how quickly the H-1B numbers will be exhausted this year, but the most conservative strategy is to assume that the H-1B numbers will be unavailable after the initial five-day filing period. Once the H-1B numbers are exhausted, new H-1B work permits will not be available until October 1, 2019.

Thus, to maximize the likelihood that affected employees will obtain an H-1B number effective as of October 1, 2018, employers must be in a position to file the H-1B petition with the government between Monday, April 2, 2018 and Friday, April 6, 2018. We are preparing “cap-subject” H-1B petitions at this time and recommend that employers begin the process now for any employees or candidates who need an H-1B.

Persons Affected

The persons who need to file an H-1B include any current employees who hold F-1 student status and who will thus need H-1B status to continue working once their F-1 Employment Authorization (known as Optional Practical Training or “OPT”) expires. In addition, any pending hires should be assessed to determine whether an H-1B will be needed for eventual continued employment, including those in J-1 academic programs with limited practical training time as well as those who currently reside outside the United States. Further, any current employees who hold TN, E-3, or L-1 status and who are beginning the green card process may need to convert to H-1B status.

“Cap-Gap” Relief for F-1 Students

Under a rule issued in 2008, DHS grants “cap-gap” relief to F-1 students whose OPT expiration dates fall between April 1, 2018 and September 30, 2018 and whose employers have filed H-1B petitions on their behalf. Such students will be given a bridge of both status and work authorization until October 1, 2018. This means that individuals in the U.S. in F-1 status who are completing OPT and whose employers have filed H-1B “change of status” petitions on their behalf will have their work authorization automatically extended until October 1, 2018 (the required start date on the H-1B petition), provided that the H-1B petition is received and approved. These individuals will not experience the gap in employment eligibility or in status that may otherwise have occurred. If the petition is rejected or denied prior to October 1, 2018, the “cap-gap” employment eligibility ends immediately.

In addition, the 2008 “cap-gap” rule grants a bridge of status — but not work authorization — to individuals in the U.S. during the 60-day grace period following completion of their F-1 status who do not hold a valid EAD. This means that individuals in the U.S. in F-1 status who are in their 60-day grace period and whose employers have filed H-1B “change of status” petitions on their behalf will have their status, but not employment authorization, automatically extended until October 1, 2018, provided that the H-1B petition is received and approved.

Alternatives to the H-1B Work Permit

In some cases, there may be alternatives to the H-1B work permit. If an affected employee falls into one of the following categories, that employee may not need to file for an H-1B work permit in April:

  • Citizens of Canada or Mexico who are eligible for a TN visa. Please note, however, that not all H-1B eligible Canadian or Mexican employees will qualify for TN status.  In addition, TN visa classification falls under the North American Free Trade Agreement (NAFTA) which continues to be closely examined by the current administration.
  • Citizens of Australia, Chile, or Singapore.
  • The spouse of an L, E or H-1B work permit holder, who is eligible for spousal employment authorization (EAD).
  • J-1 nonimmigrants who have at least 18 months of academic training available as of April 1, 2017.
  • With limited exceptions, H-1B employees who have held H-1B status at any time during the last six years with a cap-subject employer.
  • A foreign national who is married to a U.S. citizen and has received or will receive an Employment Authorization Document in connection with the pending green card process.
  • Certain other foreign nationals who may qualify for O, E, or L visas.

Conclusion

Employers must act now to identify and begin H-1B processing for candidates or current employees who require sponsorship and who do not meet one of the above exceptions. If an employer misses the filing deadline for an employee who requires H-1B sponsorship, the employee can lose legal status in the United States, including permission to work.

Seyfarth Synopsis: Federal judges in Hawaii and Maryland have issued orders blocking major portions of President Trump’s September 24, 2017 Presidential Proclamation.

The Presidential Proclamation is the third in a series of executive actions ostensibly aimed at protecting the U.S. from terrorism and other national security threats through barring or limiting U.S. travel for nationals of eight countries.  The first such action, published on January 27, 2017, was revoked in the wake of several successful legal challenges.  It was replaced on March 6, 2017 with a more narrowly tailored version.  Challenges to this second version prevailed in Hawaii Federal District Court and also before the Ninth Circuit, and they are now being considered at the Supreme Court.

On October 17, 2017, just one day before the Presidential Proclamation was set to take effect, a federal judge in Hawaii called into question the Trump administration’s claim that it will enhance national security.  The judge accordingly ruled that the plaintiffs’ challenge to the Proclamation will likely prevail.  He further found that, unless enjoined, the Proclamation will cause the plaintiffs to suffer irreparable harm in the form of familial separation, loss of access to potential foreign students who would attend schools in Hawaii, and diminished vibrancy at Muslim religious associations within the state.

In the early morning hours of October 18, 2017, a federal judge in Maryland also ruled that the plaintiffs are likely to prevail, would suffer irreparable harm, and further opined that the Proclamation amounted to an unconstitutional Muslim ban.  The judge pointed to several of President Trump’s disparaging campaign speeches and tweets concerning Muslim immigrants to support his conclusion.

As a result of the rulings in Hawaii and Maryland,  all U.S. travel restrictions imposed against nationals of Iran, Libya, Yemen, Chad, Somalia, and Syria have been lifted.  However, as the restrictions applicable to nationals of Venezuela and North Korea were not challenged in either Hawaii or Maryland, they remain intact.

The Trump administration has signaled that it will challenge these decisions and further developments will likely emerge rapidly.  Individuals from restricted countries who are considering travel to or from the U.S. should exercise caution and should anticipate increased screenings, potential delays, or even refusal of admission.

Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government’s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance. If nothing else a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers. As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law. Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies. The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible. If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected. This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.

The Story Behind Asplundh

Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?

ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States. But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas in connection with this case, with each defendant facing prison time and fines.

ICE Acting Director Thomas Homan stated in its September 28th announcement that “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).

The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States. More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.” The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.

While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts. As noted in the company’s own statement, Asplundh has already taken some corrective action, including:

  • Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
  • Revising hiring procedures to verify each identification examination for every new hire.
  • Investigating every complaint of potentially undocumented workers.
  • Retaining a third party consultant to review actions and procedures.
  • Presenting the company compliance program to ICE for review.

These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE. Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.

What Does This Mean for Your Operations?

The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made. From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.

Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability. Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda. Businesses can begin taking a proactive approach and action on the following fronts:

  • Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
  • Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
  • Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities. When the process is identifiable, then accountability can be, too.
  • Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals. For the company it can also mean a PR nightmare. Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
  • Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor. As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties. The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.

For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless of the party controlling the executive branch. Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.

As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under IRCA should be taken very seriously.

Seyfarth Synopsis: On September 15, 2017, Seyfarth Shaw partner and former U.S. Citizenship and Immigration Services director Leon Rodriguez, joined other former Department of Homeland Security Officials in filing an amicus brief in support of the State of Hawaii and other plaintiffs challenging the travel ban. 

The brief, which was also signed by former Homeland Security Secretary Janet Napolitano and former Customs and Border Protection Commissioner Gil Kerlikowske, explained that individualized assessments, based on the rigorous vetting methods already in place at the time the travel ban was first instituted, provide far more effective protection for the United States than wholesale bans based on a traveler’s country of origin.   The brief cites congressional testimony about the refugee vetting process given by Mr. Rodriguez during his time as director of U.S. Citizenship and Immigration Services.

A link to the brief is available here.

Seyfarth Synopsis: On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.

USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.  Over the last few months, the agency incrementally reinstated premium processing service for lower-volume filings including certain H-1B petitions that are not subject to the H-1B cap as well as H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program.  On September 18, 2017, the agency reinstated and will immediately accept premium processing requests for pending H-1B petitions that were filed under the Fiscal Year 2018 cap.  This includes H-1B petitions filed under the annual quota of 20,000 U.S. Master’s degree petitions as well as those filed under the general H-1B cap of 65,000 petitions.  Unfortunately, premium processing service remains suspended for H-1B petitions that are filed to extend an employee’s status or change employers.

When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.  This additional filing fee requires USCIS to adjudicate the petition within 15 days of receiving the request.  Petitions are either approved or a Request for Evidence (RFE) is issued by USCIS within that 15-day time period.  Premium processing requests can be filed with the initial filing of a petition, or at a later date by referencing the petition’s receipt number.  Since the quota of H-1B cap petitions has already been reached, this service is only available to currently pending H-1B cap cases for FY 2018.

With the reinstatement of this service, Employers should carefully review their pending H-1B cap lists and strongly consider submitting a premium processing request for any pending FY 2018 cap cases in which the beneficiary has an expired F-1 Optional Practical Training (OPT) employment authorization card and is relying on “Cap Gap” for work authorization through September 30, 2017.  Any beneficiary relying on “Cap Gap” whose H-1B petition is still pending on October 1, 2017 will lose employment authorization until his or her H-1B petition is approved.  Employers should also consider prioritizing premium processing requests for employees in a different status who are facing imminent expirations of work authorization as well as those with upcoming international travel plans that require an H-1B visa stamp for reentry.

Summary

Premium processing of FY 2018 cap H-1B petitions has resumed.  Your contacts at Seyfarth Shaw LLP will work with you to determine which cases should be considered for immediate premium processing upgrades.  In addition, we will continue to monitor USCIS announcements with regard to reinstatement of premium processing for other types of H-1B petitions.

Seyfarth Synopsis: The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.

“Congress, get ready to do your job – DACA,” tweets President Trump on Tuesday morning.   

End to DACA

The President’s tweet confirmed Sunday’s reports that the Trump administration will move forward with plans to wind down the Deferred Action for Childhood Arrivals (DACA) program following challenges to its legality by the attorneys general of several states.

Attorney General Sessions made a formal announcement this morning outlining an end to the Executive Action taken by President Obama in 2012, after Congress failed to pass the Dream Act in 2010.  The Administration confirmed that no action — meaning no loss of work authorization and/or removal of DACA recipients — will take place prior to March 2018.  This six-month period appears intended to provide Congress with a window within which to take the legislative action alluded to on the President’s Twitter account.

It is estimated that DACA provided work authorization to almost 800,000 “Dreamers” who were brought to the United States as children, many of whom know no other country.  Acting Department of Homeland Security (DHS) Secretary Elaine Duke released the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), and the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) simultaneously issued an FAQ outlining the particulars of the DACA rescission.  The DHS Fact Sheet confirms that, “effective immediately,” DHS:

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents (EADs) that have been accepted as of September 5, 2017.
  • Will reject all DACA initial requests and associated applications for EADs filed after September 5, 2017.
  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of September 5, 2017..  The government will also accept extension applications from current beneficiaries whose employment authorization benefits will expire between September 5, 2017 and March 5, 2018 — as long as the application for extension benefits is filed on or before October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for EADs filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke EADs solely based on the directives in the memorandum for the remaining duration of their validity periods.
  • Will not approve any new applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection (CBP) will, of course, retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.

USCIS acknowledged that DACA recipients will retain deferred action and their EADs “until they expire, unless terminated or revoked.”  Notably, the FAQ  states that “DACA benefits are generally valid for two years from the date of issuance.”  Accordingly, as indicated above, it appears that USCIS will continue to issue EADs for current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017 for a two-year time period.  However, DHS has not yet directly clarified the period of validity for EAD renewals

Bi-Partisan Legislation in Support of DACA

Congress will likely refocus the debate related to the “dreamers,” and there are currently two main bipartisan bills in play that could grant status and a “pathway to citizenship” to the DACA population.

  1. Introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Jeff Flake (R-AZ), and Chuck Schumer (D-NY), the Dream Act of 2017 provides a path to U.S. citizenship for young undocumented immigrants with DACA or temporary protected status (TPS) who meet certain educational requirements, enter the workforce, or enlist in the military.  All must successfully pass a background check and remain eligible.
  2. The Recognizing America’s Children (RAC) Act would allow “dreamers” who arrived in the U.S. as minors prior to 2010 the ability to adjust their status — meaning to apply for U.S. permanent residence or a green card — if they meet certain educational or military requirements, successfully pass a background check, and remain in good legal standing.

The Business Community’s Support of DACA

Last Thursday, FWD.us published a letter from Leaders of American Industry on DACA, including CEOs/Founders/Executives from Facebook, Apple, Amazon, General Motors, Google, Hyatt, Levi Strauss, Netflix, and PayPal reminding the President and Congress that “Dreamers are vital to the future of our companies and our economy. With them, we grow and create jobs. They are part of why we will continue to have a global competitive advantage.”

Possible Workforce Impact from DACA and TPS Elimination

In light of the termination of DACA, as well as possible suspension of several TPS programs, U.S. companies may wish to conduct an assessment of the number of potentially affected individuals currently in their employ.  Seyfarth partner, and former USCIS Director, Leon Rodriguez, estimated “that the combination of the threats to TPS and to DACA mean that as many as 1 million workers could lose U.S. work authorization over approximately a two and one half year period,” in a Seyfarth client alert.

Recent Form I-9 guidance and auto-extension rules now force employers to review employment eligibility basis codes.  Reviewing these category codes which are listed on EADs, may provide a starting place to assess the impact of the loss of DACA and TPS recipients.  However, this type of undertaking should be carefully considered with the assistance of competent counsel to ensure that there are no anti-discrimination based missteps.

By: Jake Campbell, Gabriel Mozes, and Jason Burritt

Seyfarth Synopsis:  As of August 23, 2017, the U.S. Department of State (DOS) has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia.  NIV interviews will resume only at the U.S. Embassy in Moscow beginning September 1, 2017.  DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.  

In response to the Russian government’s decision to reduce the number of U.S. Department of State (DOS) staff working in Russia, DOS has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia as of August 23, 2017.  The suspension will last for a period of eight (8) days and, during this time, previously-scheduled visa appointments for temporary work, business, and visitor visas will be canceled.  According to DOS, NIV interviews will resume on September 1, 2017, but only at the U.S. Embassy in Moscow.  DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.

DOS will contact any affected applicants by e-mail for rescheduling.  Rescheduled applicants and new applications submitted at the U.S. Embassy in Moscow should expect considerable delays.  Priority consideration will be given to officials of the United Nations, international organizations with offices in the United States, and those requiring travel for medical or family emergencies.

In addition, the U.S. Embassy in Moscow and the U.S. Consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus.  DOS encourages Belarussian applicants to schedule NIV appointments at the U.S. Embassies in Warsaw, Kyiv, or Vilnius.  The decision to temporarily suspend NIV operations in Russia does not affect NIV applications outside of Russia, but U.S. Embassies and Consulates close to Russia may experience additional NIV processing delays.

By: Angelo Paparelli

Seyfarth Synopsis:  The EB-5 Immigrant Investment program is at a critical juncture. As Congress contemplates reform legislation, little is known about how newly appointed officials in the Department of Homeland Security will administer and enforce the EB-5 program. The President has named two new officers, Francis Cissna as Director of USCIS (subject to Senate confirmation), and Julie Kirchner, who has already begun to serve as the USCIS Ombudsman. Their past actions foretell only part of the EB-5 program’ s future. Time will tell the rest.

Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.

Facts: Former Senator Jeff Sessions (a stalwart opponent of legal immigration) is the Attorney General. Sen. Charles Grassley (no friend of the EB-5 program) has proposed legislation, with Sen. Dianne Feinstein, to eliminate the EB-5 program.

Facts: Trump Administration appointees and nominees have previously worked closely with Messrs. Sessions and Grassley, or with the Federation for American Immigration Reform (FAIR), a nonprofit widely regarded as an anti-immigrant advocacy group. The decisionmakers include:

Sessions alumni

Stephen Miller, now Senior Advisor to the President for Policy.

Gene Hamilton, now Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor.

Grassley alumni

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS).

Kathy Nuebel Kovarik, now Chief of the USCIS Office of Policy and Strategy.

FAIR alumni

Julie Kirchner, now USCIS Ombudsman.

Aside from Stephen Miller, reportedly an author or coauthor of Versions 1.0 and 2.0 of the controversial Executive Order described by the President as the “travel ban,” not much is known publicly about the intended policy positions of these individuals, except for Mr. Cissna[1] and Ms. Kirchner, [2]  both lawyers of strong pedigree.

Mr. Cissna has been most recently “detailed” to Sen. Grassley where he helped write S.2266,[3] the H-1B and L-1 Visa Reform Act of 2015  — a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits, as well as S.1501,[4] the American Job Creation and Investment Promotion Reform Act of 2015 — introduced by and Sen. Grassley and Sen. Leahy — which included an array of what have come to be known as EB-5 “integrity” measures.

Before and after his stint with Sen. Grassley, Mr. Cissna spent years as a lawyer at DHS immersed behind the scenes in immigration policy.  His testimony before the Senate Judiciary Committee and his written answers to questions from three Senators tell us how he intends to deal with the EB-5 program if approved as USCIS Director:

  • He will finalize the two prior rulemaking efforts of USCIS during the Obama Administration (an advance notice of proposed rulemaking and a proposed rule) into final effect “according to the process set forth in the Administrative Procedure Act and related DHS and OMB [Office of Management and Budget] guidance.”[5]
  • He is “committed to enforcing USCIS policies ensuring the integrity of all USCIS adjudications, no matter who the applicant or petitioner is, as well as policy deliberations, including their independence from any inappropriate external influences.”[6]
  • He has observed that the “USCIS Ombudsman and the USCIS director should maintain an independent, yet respectful and cooperative relationship, as both share the goal of improving USCIS” and acknowledged the “USCIS Director’s statutory obligation to ‘meet regularly with the Ombudsman . . . to correct serious service problems identified by the Ombudsman . . .’”[7]
  • He confirmed his intention to “strive to ensure that the agency carries out its mission in a fair, lawful, efficient, and expeditious manner.”[8]

Before becoming the Ombudsman, Ms. Kirchner apparently did not make any public statements revealing her personal views on the EB-5 program.[9]   During her tenure as Executive Director of FAIR, however, the organization actively opposed EB-5 program.[10]

In accepting her position and taking her oath of office, Ms. Kirchner is no doubt aware of Section 452 of the Homeland Security Act, the statutory mandate prescribing the authority and duties of the Ombudsman, which provides:

Section 452 of the Homeland Security Act (HSA) provides:

(a) IN GENERAL – Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the ‘Ombudsman’). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law.

(b) FUNCTIONS – It shall be the function of the Ombudsman—

1) To assist individuals and employers in resolving problems with [U.S.]  Citizenship and Immigration Services;

2) To identify areas in which individuals and employers have problems in dealing with [U.S.]  Citizenship and Immigration Services; and

3) To the extent possible, to propose changes in the administrative practices of [U.S.]  Citizenship and Immigration Services to mitigate problems identified under paragraph (2).

In addition, Section 452(c)(F) of the HSA requires the Ombudsman to report annually to Congress and recommend “such administrative action as may be appropriate to resolve problems encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applications[.]”[11]

The responsibilities of the Ombudsman are particularly significant given that in August 2015 USCIS published a set of EB-5 “Protocols,” which limited the direct intervention of USCIS leadership in specific EB-5 cases, but exempted the USCIS Ombudsman from its prohibitions.[12] Since direct outreach to USCIS senior leadership in specific cases is now greatly restricted, the statutory role of the USCIS Ombudsman in assisting “individuals and employers in resolving problems with” USCIS becomes essentially the only way that EB-5 stakeholders can raise quality assurance problems in specific cases.  To be sure, the USCIS Office of Public Engagement (OPE) conducts regular EB-5 stakeholder engagements and listening sessions. These OPE opportunities, however, are often structured to preclude posing questions or concerns about specific cases.

Ms. Kirchner, the fifth individual to hold the title of Ombudsman, will likely review and adapt for herself the varying approaches of her predecessors.  At least one Ombudsman took a more aggressive approach, which understandably produced resistance at USCIS.  Others in varying degrees have been more or less assertive, innovative, affable and collaborative in finding ways to communicate directly with USCIS Service Center adjudicators and help resolve individual and employer  problems.

So, how much power does an Ombudsman have in interacting with USCIS?  As a matter of historic practice, prior incumbents often achieved a measure of success by acting as disinterested intermediaries, but did not offer or make public the Office’s own interpretations of the Immigration and Nationality Act (INA), deferring instead to USCIS.  As a coequal component of DHS with USCIS, however, the Ombudsman  is authorized by its mandate in HSA § 452(b)(2) and (b)(3) to “identify” problematic areas in the public’s “dealing with [USCIS]” and to “propose changes in the administrative practices” of USCIS.

Clearly, therefore, the Ombudsman’s duties of identifying problems and proposing changes to USCIS’s administrative practices are sufficiently broad to include problems and practices stemming from misinterpretations of the INA and agency regulations.  A recent instance in which a legal interpretation by the Ombudsman would have been appropriate and welcome is on long-unresolved issues of the period during which EB-5 conditional resident’s funds must be redeployed and whether the redeployment must be in “at-risk” assets once the investment project has concluded but before conditions on residency have been removed.[13]

Knowledgeable immigration lawyers recognize that the role of the Secretary of Homeland Security, and the Department’s component agency, USCIS, is to “administer” and “enforce” the INA and all other immigration laws, whereas the Attorney General possesses exclusive authority within the Executive Branch to determine and rule on all questions of law.[14]

Since the Ombudsman’s role is to identify problematic areas in the public’s dealings with USCIS and to propose changes in its administrative practices, the Ombudsman undoubtedly holds coequal authority with USCIS to challenge the latter’s legally unsupportable and troublesome administrative interpretations of the law and regulations underpinning the EB-5 program, subject only to the Attorney General’s power to conclusively determine questions of law that are binding within the Executive Branch.

Recently, Ms. Kirchner provided welcome insights on the EB-5 program. In the Ombudsman’s 2017 Report to Congress, she acknowledged the adverse consequences caused by the lack of robust anti-fraud and national- security protections, and by the failure of the House and Senate to agree on a permanent or multi-year reauthorization of the Regional Center program. Concerning the unfortunate pattern of successive short-term EB-5 Regional-Center reauthorizations, Ms. Kirchner observed:

Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework,and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program.[15]

In addition, Ms. Kirchner observed in her 2017 Report that extremely long backlogs in EB-5 adjudications at USCIS continue to plague the program, and, with regard to the predominant segment of all EB-5 investors, namely, individuals born in mainland China, that the lack of annual EB-5 immigrant visa numbers “will likely [require them to] wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.”[16]

One troubling observation in the 2017 Report hinted that the Office of the Ombudsman may not offer its own independent statutory and regulatory analysis in situations where USCIS’s policy guidance appears to deviate from the INA and agency regulations, even though the views of USCIS cause problems for individuals and businesses:

In November 2016, USCIS released an addition to its Policy Manual titled “Investors.” This six-chapter policy treatment is a significant achievement, as it synthesized and aligned the agency’s regulations, decisional law, policies, and procedures with enabling statutes. Given the complexity of the EB-5 Program, the creation of this comprehensive and authoritative resource has been well received by EB-5 stakeholders.[17]

This statement no doubt comes as a surprise to many external EB-5 legal experts. The lawyers who submitted an eight-page AILA Comment replete with numerous and wide-ranging suggested corrections to the EB-5 chapters in the USCIS Policy Manual would likely disagree with the characterization that this sub-regulatory guidance can be fairly characterized as a “comprehensive and authoritative resource [that] has been well received by EB-5 stakeholders.” Thus, it remains to be seen just how much future federal litigation (likely brought under the Administrative Procedure Act, the INA, and other statutes) will be spawned raising substantive legal questions on the degree to which the manual is in fact comprehensive or authoritative. Hence, scholars of EB-5 jurisprudence must stay tuned as EB-5 jurisprudence evolves.

* * *

In the final analysis, insufficient hard facts are known to foretell how Mr. Cissna, Ms. Kirchner, and their respective agencies will discharge their responsibilities under the immigration laws. As noted, they are both accomplished lawyers, and during their respective honeymoon periods, EB-5 stakeholders should accord them the respect and confidence, consistent with existing rules of professional responsibility, that the views of their former employers are not necessarily predictive of their future policies.[18]

Time will tell whether and how well Ms. Kirchner and Mr. Cissna engage together in resolving EB-5 stakeholder concerns over backlog reduction, wayward adjudications, kitchen-sink requests for additional evidence, and other frustrations.  Until more is known about real-world actions of the Ombudsman and adjudications at USCIS, EB-5 stakeholders and their immigration lawyers must decide for themselves whether resort to Ombudsman intercession will more likely help or hurt regional centers and immigrant investors in specific cases. The calculus in approaching or avoiding the Ombudsman should be based on a variety of factors, such as, the financial strength of the project and its potential or actual job-creation activities; the factually-demonstrable urgency in receiving an adjudication; the presence or absence of red-flag factual or legal issues; and the likelihood that the particular case presents issues that, once resolved, would benefit multiple EB-5 stakeholders, and thereby allow the Ombudsman to husband its scarce resources, and get more bang for its intercessory buck; and other relevant  considerations.

This author believes that USCIS (under Mr. Cissna) and the Office of the USCIS Ombudsman (under Ms. Kirchner) will be led in good faith by talented and accomplished lawyers who have taken oaths to support and uphold the Constitution and the immigration laws of the United States, unless either of them, by their conduct, demonstrates otherwise.

For the time being, as a matter of fact, this author will continue to seek the intervention of the Ombudsman in worthy cases, given that (a) Office of the Ombudsman continues to be staffed by experienced lawyers and other career officers who have historically been helpful in employment-based immigration matters, (b) the EB-5 program continues to be a tax-generating engine of economic growth and job creation, and (c) fully law-compliant EB-5 petitions continue to encounter “problems” at USCIS.

As for USCIS itself, the agency’s widely-known endemic problems continue to cry out for resolution.  Submission of well-documented cases establishing EB-5 eligibility, participation in public engagement, advocacy at public conferences and through print and social media, and litigation — this author believes — remain the tools of choice.

Footnotes:

[1] Mr. Cissna’s legal career is outlined in his answers to the questionnaire of the Senate Judiciary Committee, accessible here (unless otherwise noted, all links are current as of June 12, 2017).

[2] Ms. Kirchner’s official biography can be found here.

[3] S.2266 is available here.

[4] S.1501 is available here.

[5] May 27, 2017 Responses of Lee Francis Cissna to Questions for the Record from Sen. Dianne Feinstein), available here, No. 11 (Responses).

[6] Responses to Sen. Durbin, available here, No. 9.  Sen. Durbin expressly asked “How would you ensure that President Trump’s family business interests won’t affect the adjudication of [the EB-5 program] . . . or the consideration of possible reforms to [the program].”

[7] Responses to Sen. Durbin, No. 6.

[8] Responses to Sen. Feinstein, No. 2.  In the preface to her question Sen. Feinstein stated that “one of the agency’s strategic goals is ‘providing effective customer-oriented immigration benefit and information services’ . . . [and] one of USCIS’s core customer service principles is ‘to approach each case objectively and adjudicate each case in a thorough and fair manner.’”

[9] Based on the remarks made by a representative of the USCIS Ombudsman at the Federal Bar Association Annual Immigration Conference on May 12, 2017, Ms. Kirchner reportedly has indicated to staff that she is interested in the EB-5 investor program, the H-1B visa category and other areas of employment-based immigration law.

[10] Ms. Kirchner is listed, for example, as a lobbyist in 2012 concerning  S.3245 sponsored by Sen. Leahy, a bill to “permanently reauthorize the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program,” regarding provisions  “relating to more controversial issues in three of the four programs because of significant deficiencies in oversight and fraud.” See Form LD-2 for Third Quarter 2012, available here.  Also, in 2012, while Ms. Kirchner served as FAIR’s Executive Director, the organization published “Selling America Short: The Failure of the EB-5 Visa Program,” available here.

[11] As discussed in the text below, on June 29, 2017 Ms. Kirchner, in her formal capacity as Ombudsman, submitted to Congress her Office’s  2017 Annual Report (“2017 Report”).  The report, discussed later in the text, is available here (last accessed on July 12, 2017).

[12] Entitled, “Ethics and Integrity: Protocols for Processing of EB-5 Immigrant Investor Visa Petitions and EB-5 Regional Center Applications, Including Stakeholder Communications,” the document is available here.

[13] The USCIS’s continuing at-risk “sustainment” requirement for redeployed funds, lasting until conditions on residency have been removed, is an issue that begs for interpretation by the USCIS Ombudsman. See June 14, 2017 USCIS Policy Alert, “Job Creation and Capital At Risk Requirements for Adjudication of Form I-526 and Form I-829,” (accessible here) and amendments to the USCIS Policy Manual at Volume 6: Immigrants, Part G, Investors [6 USCIS-PM G] (accessible here). See also, “USCIS Finalizes EB-5 Sustainment and Redeployment of Capital Issues and Consequences of Regional Center Termination,” by Robert C. Divine in the current issue. For arguments opposing the USCIS redeployment and sustainment interpretations, see American Immigration Lawyers Association Comments on the USCIS Policy Manual Regarding Eligibility Requirements for Regional Centers and Immigrant Investors. Volume 6: Immigrants, Part G, Investors (December 14, 2016; AILA Doc. No. 16121565 Posted 12/15/16 [“AILA Comment”]), at pp 6-7 (noting that the at-risk requirement is a creature of the regulations and not the INA, and that as a matter of law the EB-5 investment need merely be “… sustained over the two years of the petitioner’s conditional permanent residence in the United States”).

[14] See INA § 103(a).

[15] See, 2017 Annual Report at 32 (footnotes omitted).

[16] Id. at 33.

[17] Id. at 31-32 (footnotes omitted).

[18] Rules of legal ethics generally hold that “a lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” See American Bar Association Model Rules of Professional Conduct Rule 1.2(b)(“Scope Of Representation And Allocation Of Authority Between Client And Lawyer”), accessible here. The author understands that Ms. Kirchner apparently did not serve as an attorney of FAIR, but as its Executive Director. In this author’s view, however, merely because an individual on behalf of a prior employer has opposed immigration relief for unauthorized immigrants (see, e.g., Ms. Kirchner’s November 8, 2007 testimony before Congress to that effect, accessible here) does not require or necessarily justify the conclusion that she would ipso facto take steps to maintain America’s legal immigration system in its clearly dysfunctional state.

By Dawn Lurie, Mahsa Aliaskari, and Jason Burritt

Seyfarth Synopsis: USCIS released a revised version of Form I-9 that employers must use to verify identity and employment authorization of new hires effective September 18, 2017. There are no substantive changes from the current Form I-9, which USCIS issued in November 2016 and considered a major overhaul.  Employers are urged to utilize the roll out of the new Form I-9 as an opportunity to offer I-9, E-Verify and Antidiscrimination training, to assess their state of immigration compliance and to address necessary remediation.  

As expected, the U.S. Citizenship and Immigration Services (USCIS)  released a revised version of Form I-9, Employment Eligibility Verification, on July 17.  Employers can use this new Form I-9 or continue using the  Form I-9 with a revision date of 11/14/16 N through September 17.  As of September 18, employers may only use the new form with a revision date of 07/17/17 N; no other versions will be acceptable.  The issuance of the new form does not necessitate employers  “redoing” previously completed Form I-9s, this is going forward only.

What’s New?

In the Form I-9 instructions:

  • Updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER). Given the lack of any true substantive updates, it appears this name change is the main reason for the form update.
  • Removed “the end of” from the phrase “the first day of employment.”

In the List of Acceptable Documents:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C and made it easy to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3 (in the dynamic Form I-9) and to identify it in E-Verify.
  • Combined the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card into an easier format.

In the new M-274, Handbook for Employers:

  • USCIS reflected these changes and endeavored to simplify the format.

What’s the Same?

No changes to storage – which means that employers may still keep Form I-9s in a single format or a combination of formats, such as paper, microfilm or microfiche, or electronic.  For paper I-9s, we continue to recommend a three “binder system” consisting of Active, Reverifications and Terminated I-9s.  Employer should keep all of the forms separate from personnel folders and safeguarded due to privacy concerns.

For electronic users, this version’s updates should not be as difficult as the one released in November of 2016.  However, it is important to note that keeping up with version changes, as well as USCIS directives on how to record certain status updates or other bits and pieces of information,  is clearly an issue for some Electronic I-9 vendors.  For those employers considering electronic systems, or already using an electronic I-9, it is critical to conduct due diligence to ensure that the product complies with the regulations and guidance.  Not all systems meet the electronic I-9 regulations, and the mere fact a large vendor sells the product does not necessarily render the product compliant.  We expect that Immigration and Customs Enforcement (ICE) will begin to develop and showcase an expertise in this area in the near future.

No changes to retention – which means that employers should retain all Form I-9’s for active employees as well as all Form I-9’s for terminated employees for three years from the date of hire or one year from the date of termination, whichever is later.

No relief for employers with remote workforces – which means that the person who completes Section 2 must see the new hire in person, the original documents presented for Section 2, and record the documents in Section 2.  No Skype, no Facetime, no WhatsApp, no Instagraming, no scanning and no faxing.

What Should We Do Now?

The 60 day transition period for employers and electronic I-9 vendors provided by the government should be used for more than deprecating the old Form and introducing the 7/17/17 version before September 18, 2017.  In fact, we recommend that companies immediately begin to use the new Form and notify their HR and other staff of the change.  This is an excellent opportunity to also offer I-9, antidiscrimination and E-Verify related trainings as well as to review immigration related policies and handbooks (or to start thinking about developing them).  Given the focus on compliance by the new administration, immigration related efforts should prove time and money well spent.  There is speculation that increased worksite enforcement, greater scrutiny and less tolerance for companies with I-9 related issues is on the horizon.  Now is the time to schedule experienced immigration compliance counsel for an on-site proactive I-9 review, including access to those that own the I-9 “process” on the ground.  This review should include observations focusing on the implementation of well-intended standard operating procedures.  Site visits and /or direct discussions are critical to assessing and identifying potential I-9 related  liabilities.  The chance to remediate on your own timeline, and not that of the government, is priceless; proactive remediation is key.

Interested in an immigration compliance assessment?  Contact the authors or your relationship partner at Seyfarth.

Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration’s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.

Further, the Court has reinstated the travel ban for the six countries, but only insofar as it relates to foreign nationals who lack a bona fide relationship with a U.S. person or entity. Examples of individuals who do possess a bona fide relationship with a U.S. entity include students enrolled at U.S. universities and employees of U.S. companies.  Conversely, foreign nationals from the affected countries wishing to visit solely for tourism may encounter significant challenges entering the U.S.

This ruling will not impact U.S. employers that employ foreign nationals from any of the affected countries. U.S. employers may continue to sponsor their employees for employment-based visa petitions, and employees may continue to apply for work visas at U.S. Embassies and Consulates. However, all foreign nationals from these countries should nevertheless exercise caution when travelling to the U.S., as they can expect to face lengthy delays and questioning at the border as part of the administration’s ongoing “extreme vetting” measures.

Seyfarth Shaw is monitoring the developments closely, and will publish updated information accordingly.