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

United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.

What’s the Latest on TPS?

While the government is back in business, the path to immigration reform seems as tumultuous as ever. The chances to reverse the termination of TPS are slim, and the impact is slowly beginning to sink in for TPS beneficiaries and employers alike. An Immigration Forum Fact Sheet on TPS notes: “Recent data estimate that TPS holders from El Salvador, Honduras, and Haiti contribute a combined $4.5 billion in pre-tax wages or salary income annually to our nation’s gross domestic product.”

What Do Employers Need to Know?

Continue Reading Auto Extension Influx: Automatic Extension of El Salvador TPS EADs

  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.

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.

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.

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.

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.