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President Trump’s October 9, 2019 overtures landed as music to the ears of many a grizzled immigration lawyer who persistently suffers battle fatigue from the culture of virtually never.  On that day the President released a double album, each with artfully penned liner notes:

The songs of TAFCAEA and IAGD,  resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:

  • publish clear guidance rules that spell out permissible and prohibited conduct by regulated parties;
  • eliminate instances of “unfair surprise” so that members of the public (the regulated community) are not blindsided by unforeseen changes in how the agencies interpret federal laws;
  • place any purportedly binding agency rules not published in the Federal Register (known as sub-regulatory guidance) into an indexed and searchable section of each agency’s website (or else, the “rules” go away); and
  • soon announce rules of procedure governing administrative inspections and then be held accountable to comply with the published ground rules.

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Continue Reading The Trump Administration Releases a New Hymnal to Curb the Administrative State; Immigration Lawyers Erupt in Rapturous Song

By Randy Johnson and Dawn Lurie

Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar[1] with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.

The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States.[2] As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.”  For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.…

Continue Reading Houses Passes Bill Lifting “Per-Country Caps”

By: Dawn M. Lurie and Greg Morano*

On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.…

Continue Reading TPS Update: Last Minute Automatic Extensions For El Salvador and Three Other Countries

By: Dawn Lurie

Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th.  The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS).  Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown.  USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it.  We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.  

With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics.  Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.

Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown.  If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames.  For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems.  Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues.
Continue Reading E-Verify Thawed: The Government Reopens but Guidance is Messy

Over the past few days, I’ve received a large number of emails and calls from stressed out clients asking about the lack of access to E-Verify. Do not panic, employers will not be penalized as a result of the E-Verify operations shutdown.

E-Verify is the U.S. Citizenship and Immigration Service’s (USCIS) internet-based system that compares information from an employee’s Form I-9 to Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility.

Since E-Verify is not fee based, the current lapse in appropriated government funding affects the program. Employers will not be penalized for any delays in creating E-Verify cases.  However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the E-Verify system. We expect USCIS to issue guidance—as they have during prior shutdowns— suspending the “three-day rule”  which mandates creating a query within three day of starting work for pay, for any case affected cases.  Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time.
Continue Reading Government Shut Down= E-Verify Shut Down

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.

In ICE’s press release, HSI reminded employers about its “three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.”

These events have been expected and actually follow prior comments by HSI officials that we previously reported, confirming that 2018 will be a year of increased immigration enforcement.…

Continue Reading Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent

By: Dawn M. Lurie and Greg Morano*

Seyfarth Synopsis: The US Citizenship and Immigration Services (USCIS) rules concerning auto extensions of employment authorization and Temporary Protected Status (TPS) can be confusing, and it is important employers know how to update Forms I-9 for TPS beneficiaries.  We have previously reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while initially deferring a decision for Honduras.  Since then, the government terminated TPS for Nepal on 05/22/2018 and for Honduras on 06/05/2018.  The decision affects approximately 9,000 Nepalese foreign nationals and approximately 57,000 Honduran foreign nationals.

What Happened?

The Department of Homeland Security (DHS) has terminated TPS for Nepal and Honduras with delayed effective dates.  For Honduras, TPS will terminate on January 5, 2020.  For Nepal, TPS will terminate on June 24, 2019.  This means that TPS recipients of the respective countries have until the above-mentioned dates to continue to live, and, if so authorized, work in the United States.…

Continue Reading TPS Terminations and the Form I-9

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