Skip to content
  1. By: Mahsa Aliaskari

Update: At midnight the federal government shut down.  We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.

Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.

Department of Homeland Security (DHS)

U.S. Citizenship and Immigration Services (USCIS)

As a fee based agency, there will be minimal impact on USCIS operations.  This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.

Continue Reading Déjà vu – Government Shutdown and Impacts on Immigration

By: Dawn M. Lurie and Alexander Madrak

With the recent slew of news from US Citizenship and Immigration Services (USCIS) concerning Temporary Protected Status (TPS), it is important employers know how to update Forms I-9 for TPS beneficiaries.  Over the last several months, we reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while deferring a decision for Honduras.  The debate in Congress surrounding the loss of status to almost 300,000 individuals continues to intensify.  Employers are also affected by the phase out of TPS as they consider how to handle the TPS beneficiaries in their workforce, some of whom have been with companies for many years.

As described below, Nicaragua, Honduras, and Haiti, have received temporary automatic extensions through the publication of their respective Federal Register notices; however, USCIS remains silent on how the automatic extensions will work for El Salvador (with TPS set to expire on September 9, 2019).   Admittedly, tracking work authorizations can be cumbersome even in the best of times.

Continue Reading More Form I-9 Confusion for Employers: TPS and Limited Automatic Extensions

By: Dawn M. Lurie, Alexander Madrak, and Greg M. Morano

Seyfarth Synopsis: On January 13, 2018, per a federal district court order, U.S. Citizenship and Immigration Services (USCIS) began accepting Deferred Action for Childhood Arrivals (DACA) renewals and requests from certain individuals.  On January 16, 2018, the United States government stated its intent to appeal the district court’s injunction to both the Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.

Quick Facts: Following the federal district court order, USCIS posted an update to its website, outlining the process for DACA requests and renewals.  USCIS will:

  • Consider renewals from beneficiaries previously granted deferred action and whose DACA expired on or after Sept. 5, 2016; and,
  • Consider requests from beneficiaries previously granted deferred action whose DACA status expired before Sept. 5, 2016 or whose DACA status was previously terminated at any time.

Continue Reading DACA: Drama over Dreamer’s Program Continues

By: Dawn M. Lurie

Seyfarth Synopsis: “ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”  Referring to Immigration and Customs Enforcement’s (ICE) early morning raids at nearly a hundred franchisee convenience stores across the nation, the ensuing public comments from agency officials confirm that 2018 will be a year of increased immigration enforcement.  ICE investigations can result in the arrest of employers and employees and the imposition of large-scale fines; under the current Administration, though, it’s not only ICE that companies need to consider.  Following the “Buy American, Hire American” Executive Order, a myriad of reinvigorated agencies that span all parts of the government have increased immigration-related oversight.  Employers should proactively prioritize addressing immigration compliance. 

Continue Reading Following a Long Thaw, ICE Returns with Increased Worksite Enforcement

By: Dawn Lurie and Alexander Madrak

Seyfarth Synopsis: The Department of Homeland Security ends Temporary Protected Status for El Salvador, Nicaragua, and Haiti, affecting close to 300,000 individuals.  Employers should be prepared to handle the influx of work authorization automatic extensions, expiring work authorizations, and other Form I-9 issues that may arise.

What Happened?

On Monday, January 8, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced the termination of Temporary Protected Status (TPS) for El Salvador.  El Salvador’s TPS designation was set to expire on March 9, 2018, but Secretary Nielsen delayed termination for 18 months to September 9, 2019 in order to “provide for an orderly transition.”  This decision affects an estimated 200,000 Salvadoran foreign nationals.

Similarly, Nicaragua’s TPS was set to expire on January 5, 2018, but was extended to January 5, 2019.   The Department of Homeland Security (DHS) also previously announced the termination of TPS for Haiti.  Haiti’s TPS termination was delayed for 18 months from the original expiration, with TPS now terminating on July 22, 2019.  Together, these decisions affect an estimated 5,300 Nicaraguan and 59,000 Haitian foreign nationals.

Continue Reading TPS Ending for El Salvador, Haiti & Nicaragua, and a Short Reprieve for Hondurans Still Waiting to Know Their Fate – Now What?

By: Angelo Paparello

Seyfarth Synopsis: Employers take note. The April 18, 2017 “Presidential Executive Order on Buy American and Hire American,” has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.

“It became necessary to destroy the town to save it.”

~ An unidentified U.S. major, referring to the February 7, 1968 bombing of the South Vietnamese town of Ben Tre that killed hundreds of noncombatants, as recounted by Associated Press reporter, Peter Arnett.

Continue Reading Revanchist Immigration: The Aftermath of “Buy American, Hire American”

By Mahsa Aliaskari and Alexander Madrak

Seyfarth Synopsis: Citing security reasons, the Trump administration announces expansion of requirements for the 38 countries that participate in the U.S. Visa Waiver Program (VWP) allowing limited travel to the U.S. for business and tourism.

On December 15, 2017, the Department of Homeland Security (DHS) announced additional security measures for countries whose nationals use the U.S. Visa Waiver Program (VWP) for temporary visits to the U.S.  The Administration’s most recent announcements surrounding the VWP requirements fall in line with its ongoing efforts to tighten the rules for those seeking to visit, work or live in the United States.  With national security serving as the justification for the enhanced scrutiny and increasing limitations, while the VWP changes may appear innocuous, they may also impact how companies handle business travel.  For clarification on all of the acronyms used in this space, remember – if you are traveling using ESTA – that means you are traveling under the VWP program.

The VWP allows citizens from 38 countries to travel to the United States for business or pleasure for up to 90 days.  More than 20 million people participate in the program each year, generating nearly $100 billion in travel exports for the U.S. economy.  European countries encompass a large majority of the 38 countries with Australia, New Zealand, Japan, Singapore and South Korea also participating.

The DHS announcement included a requirement for VWP-participating countries to screen travelers crossing their borders from third-party countries against U.S. counterterrorism information.  Another change that more closely aligns with the Administration’s pattern of tightening the rules for entry into the U.S. requires VWP countries to engage in a public information campaign aimed at reducing visa overstays.  This public information campaign requirement will be applied to any country where more than 2% of its nationals overstay their 90-day stay in the U.S.  Current statistics show that only 4 of the 38 countries that participate meet this threshold – Greece, Hungary, Portugal, and San Merino.

DHS has historically struggled to monitor and enforce exit requirements. With these new VWP requirements, we may see efforts to better track VWP travelers, which may mean more countries being subject to this new public information campaign requirement.  But more importantly, it is not yet clear what kind of an “information campaign” would be deemed sufficient for a country to comply, how it would be monitored and what kind of unilateral action will be taken if a country is deemed noncompliant.  What we do know is that the DHS Secretary has the authority to designate and remove countries from the VWP.  Without a clear roadmap of how these new requirements will be monitored or implemented, there is some cause for concern that a country could be removed at any time.

Now more than ever, business travelers should keep in mind that overstaying the 90-day period even by one day not only makes the person deportable from the U.S., but can also mean losing the privilege of using the VWP.  To visit in the future, a B visitor stamp would have to be obtained at a U.S. consulate for any entries into the U.S., and the B visa applicant may have to explain their overstay to a consular officer.

The increased requirements on the VWP follow the Administrations’ efforts to increase enforcement and restrictions in the immigration arena.  Stay tuned.

Seyfarth Synopsis: The Department of Homeland Security (DHS) published its regulatory plan for 2018, which aligns with President Trump’s Executive Order, Buy American Hire American.

Although the specifics of each proposed rule will remain confidential until published in the Federal Register, the Regulatory Agenda does provides insight on what is likely ahead.  Changes to the existing visa programs will be accomplished through a notice and comment period, and will not become effective immediately.

H-1B Cap Lottery Pre-Registration and Selection

DHS will propose a rule that would require all H-1B petitioners to pre-register for the H-1B lottery.  Only those petitioners that have been selected in the lottery could then submit H-1B petitions for that fiscal year.

As introduced in the Buy American Hire American Executive Order, DHS is also expected to propose a priority system for the allocation of H-1B visa numbers.  Priority would be given to the beneficiaries that DHS deem to be the most highly skilled and also the highest paid. (Potential Publication Date: February 2018)

H-1B Eligibility

The proposed rule would revise the definition of “employer-employee relationship” and add new requirements designed to ensure that employers pay appropriate wages to H-1B workers.  In addition, the rule is expected to raise the standard on what constitutes a specialty occupation with the stated goal to “increase the focus on truly obtaining the best and brightest.” (Potential Publication Date: October 2018)

Termination of H-4 Work Authorization

DHS will propose the elimination of the February  2015 regulation permitting certain H-4 spouses to apply for employment authorization.  (Potential Publication Date: February 2018)

Revisions to Practical Training for Foreign Students

Immigration and Customs Enforcement (ICE) may issue a proposed rule to reform the practical training programs for foreign students.  Revisions will likely include additional employer obligations and possibly a rescission or limitation of the Obama Administration’s extension of STEM Optional Practical Training from 17 to 24 months.  (Potential Publication Date: October 2018)

Summary

DHS’s Regulatory Agenda for 2018 contains many changes that could greatly affect employers’ business immigration programs as they pertain to individuals in H-1B, H-4 and F-1 status.  Although some of these proposed rules could be introduced as early as February 2018, the rules must first go through a notice and comment period followed by a formal approval process that will take many months to pass.  Seyfarth Shaw LLP will closely monitor these developments.

Seyfarth Synopsis: If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.

U.S. Citizenship and Immigration Services (USCIS)

In the event of a shutdown, USCIS will be minimally impacted because it is largely a fee-funded service.  This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.  However, petitions for which a Department of Labor (DOL) certification is required — such as an H-1B or E-3 petition that requires a Labor Condition Application (LCA) — may be adversely affected, as discussed.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during a shutdown.  Employers must continue to complete I-9 forms in compliance with the law and create cases in E-Verify if E-Verify becomes available.

Other agencies of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) would likely retain most of their essential staff, so it is expected that TN and L-1 petitions for Canadian nationals would continue to be adjudicated at the border.

Department of Labor (DOL)

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL,  are considered non-essential and would likely be placed in furlough status during a  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, applications for permanent employment certification (PERM applications), or PERM audit responses.

Department of State (DOS)

In the event of a shutdown, it is likely that visa issuance will continue, at least temporarily.  It is expected that domestic and overseas Consular operations will remain fully operational as long as sufficient fees exist to support operations.

Seyfarth Shaw’s Business Immigration Group is closely monitoring this developing situation.  If you should have any questions about how the government shutdown might affect your workforce, please reach out to your contact person at Seyfarth Shaw LLP. We will be happy to address your questions.

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.