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The Department of Homeland Security (DHS) has released its semi-annual agenda, outlining the regulations it plans to propose and finalize in the coming months. The following are the administration’s key employment-based immigration priorities that are in the process of being developed or in the final stages of the rulemaking process.
Regulations to be proposed:
Regulations in the final stages:
BAL Analysis: The regulations are in various stages of the rulemaking process, and it normally takes a minimum of three months after a proposed regulation is published before a final rule is issued. Proposed regulations are subject to a public notice and comment period during which members of the public may submit feedback. DHS is required to review and consider the comments before drafting and releasing a final regulation. Employers are encouraged to work with BAL to plan for upcoming changes and to provide comments to DHS to help shape final immigration regulations. BAL is monitoring the regulatory agenda and will provide clients with updates on individual regulations as they progress through the rulemaking process.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services announced Wednesday that it will begin accepting online applications from certain business visitors, tourists and students who are seeking to extend their stays in the United States. This announcement came after USCIS announced a new eProcessing program to accelerate USCIS’ transition to a digital business model. The agency said eProcessing “will be a complete digital experience, from applying for a benefit, to communicating with USCIS, through receiving a decision on a case.”
Key points:
Background: Wednesday’s announcement is part of a broader effort to expand online filing options. Besides the new eProcessing options described above, the Department of Homeland Security plans to propose a rule to move toward end-to-end electronic processing. USCIS Director L. Francis Cissna said in an interview in October that he hopes for online filing to be available for all applications and petitions by the end of 2020.
BAL Analysis: The online filing option is welcome news that will allow eligible applicants to avoid hardcopy applications and move into the processing queue faster. For now, eProcessing is only available for a limited number of applications and petitions. USCIS has said it will broaden the availability of eProcessing to other classifications soon.
The Department of Homeland Security’s Office of Inspector General has issued a fraud alert about a phone scam involving callers impersonating DHS or other law enforcement officials.
In this two-part scam, individuals first connect with their victims through social media platforms and, after establishing an online friendship, ask for a small amount of money. The following day, the scammers call the victim by spoofing a DHS field office phone number to impersonate a DHS officer or other official and inform them that their money was used to fund a criminal or terrorist organization, then refer them to a “lawyer” who can help them. The victim then contacts the “lawyer” who instructs them to pay $1,000 or more as a retainer.
BAL Analysis: Anyone who believes they have been targeted by this scam may call the Office of Inspector General hotline at 1-800-323-8603 or file a complaint online at ww.oig.dhs.gov. The OIG is also encouraging anyone who receives this type of call to ask the callers for their phone number or email address and report it to the OIG.
Issues & Insights (May 18, 2019) – Under the banner of protecting U.S. workers, the Trump administration is working to rescind a regulation that allows certain spouses of high-skilled foreign workers – referred to as H-4 visa holders – to apply for work authorization while they are waiting for their green cards.
But why? There is no evidence that allowing those spouses to work hurts U.S. workers. That isn’t just my view; it is the position of government lawyers who have the impossible job of defending the White House initiative. In fact, prohibiting H-4 visa holders from working will cost our economy more than a billion dollars annually in lost revenue.
Due to a shortage of U.S. green cards for high-skilled immigrants, many foreign professionals live in limbo for a decade or even longer. To put the United States on equal footing with other countries in the global competition for skilled workers, the Obama administration published a regulation that allows H-4 spouses of high-skilled workers to apply for work authorization while they wait for a green card. Before the policy change, many couples abandoned plans to settle in the United States and took their talents to countries like Canada and Australia which have long permitted both spouses to work.
Approximately 91,000 H-4 visa holders have obtained work authorization under the Obama rule, and they contribute to the country’s economy. A recent study by two economists found that rescinding the H-4 regulation would cost the federal government $1.9 billion and state and local governments $530 million in lost tax revenue annually, with no employment or income gains by domestic workers to offset those losses. The study estimated that rescinding the rule could reduce U.S. GDP by approximately $7.5 billion per year.
Rescinding the rule would result in U.S. workers losing their jobs. Consider, for example, Alpa Gajera, whose husband is on an H-1B visa and has been in line for a green card since 2012. Using her work authorization under the H-4 rule, Gajera has invested thousands of dollars in opening two cafés in Atlanta, where she employs six U.S. citizens. She plans to open two more locations.
Another example is Hiral Sanghavi, an H-4 visa holder and founder and CEO of a company in Redmond, Washington that employs U.S. workers and has brought in more than $20 million in sales. Taking away these entrepreneurs’ ability to work in the United States will force them to fire U.S. workers.
Not everyone supports the policy of allowing H-4 visa holders to work. A small union called Save Jobs USA asked a federal court to invalidate the regulation on the basis that the foreign workers would take their members’ jobs. In 2015, the court sided with the Obama administration and held that the union “failed to demonstrate more than a possibility that DHS’s H-4 Rule might introduce new competitors into the market for tech jobs.” The union appealed the ruling and the lawsuit has continued to progress.
Following the 2016 election, the Trump administration issued the “Buy American and Hire American” Executive Order and wasted no time in seeking to reverse President Obama’s policy. That did not surprise anyone, but what did come as a surprise – perhaps to the White House itself – was the fact that the Department of Justice has continued to argue in federal court that there is no evidence that the U.S. workers challenging the regulation will be harmed.
Just weeks ago, government lawyers argued in the appeals case that the union has presented “no evidence” that H-4 workers would seek employment in the same industry as its members. To say the least, this argument undercuts the administration’s claim that rescinding the rule would give U.S. workers “a better chance at obtaining jobs” that H-4 workers currently hold. With the Department of Justice conceding that H-4 workers do not harm U.S. workers, and with overwhelming evidence that their employment creates over a billion dollars in revenue, where does that leave the White House? That remains to be seen.
Members of the business community and immigration advocates across the country are prepared to fight the administration’s efforts to eliminate H-4 work authorization. If the administration does proceed down the path of rescinding the regulation, we can be certain that the statements of the government’s own lawyers will come back to haunt them. And worse, our economy will suffer unnecessarily from the rescission of a policy that is working to keep America competitive for the high-skilled workers it needs.
To read the full, original article on Issues & Insights website, please click here.
Eileen Lohmann is an Associate in the Washington, D.C. office of Berry Appleman & Leiden LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or , or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
U.S. Citizenship and Immigration Services announced today that it has completed data entry for all H-1B cap-subject petitions for fiscal year 2020 that were selected in the lottery, including petitions selected under the U.S. advanced degree exemption.
Background: USCIS received more than 200,000 H-1B cap petitions in the first week of April and conducted random lotteries on to select petitions under the general cap of 65,000 and the advanced-degree exemption of 20,000. Under a new regulation, the agency reversed the order of the general and advanced degree lotteries to give advanced degree holders better odds of being selected for adjudication.
BAL Analysis: Employers should anticipate receiving receipt notices for petitions that were selected or returned petitions for those that were not selected over the coming weeks. USCIS is asking that employers and individuals refrain from contacting the agency about the status of their case until they have either received a receipt notice or returned petition.
IMPACT – MEDIUM
What is the change? The Swiss Federal Council has adopted an amendment that abolishes the quotas that were previously allotted for Bulgarian and Romanian nationals.
What does the change mean? Nationals of Bulgaria and Romania will be able to move freely under the same conditions as other EU nationals starting June 1.
Background: Bulgaria and Romania acquired full free movement rights and open access to the labor market in Switzerland on June 1, 2017. However, under a safeguard clause (“ventilklausel”), Switzerland imposed quotas on B permits for Bulgarian and Romanian nationals. The safeguard clause ends on May 31, and after that date Romanian and Bulgarian nationals will no longer be subject to the quotas and will be able to apply for the same work permits as EU/EFTA nationals, such as L and G permits.
Analysis & Comments: The change is good news for businesses, as Bulgarian and Romanian nationals will no longer have restricted access to the Swiss labor market as of June 1.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
U.S. Citizenship and Immigration Services has announced that in June it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart, as published in the State Department’s June Visa Bulletin.
The Dates for Filing chart, also published in the June Visa Bulletin, will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine filing eligibility. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in June.
Application Final Action Dates for Employment-Based Preference Cases:
USCIS also announced that family-based immigrants will be permitted to use the Dates for Filing chart that is applicable to family-sponsored immigrants in June. The Dates for Filing chart for family-based immigrants was also published in the June Visa Bulletin.
The U.S. Department of Transportation on Wednesday ordered the suspension of air travel between the U.S. and Venezuela, effective immediately.
Background: The order by the Transportation Secretary is based on findings by the Acting Secretary of Homeland Security on conditions in Venezuela, and the Secretary of State approved the flight suspension on Wednesday, May 15. U.S. consular services in Venezuela have been suspended since January.
BAL Analysis: Companies should make alternative plans for those employees needing to travel between the two countries.
President Trump announced a plan today to overhaul parts of the U.S. immigration system. The plan focuses on new security measures at the border, changes to the asylum process, and a revised legal immigration system that shifts family-based green cards to employment-based and creates a new points-based immigration system. This is an evolving issue and BAL will provide updates as additional information becomes available.
Key provisions:
BAL Analysis: The White House is now working on drafting an immigration bill and seeking Congressional sponsors. The plan announced today is a summary of its forthcoming legislative proposal, and BAL will provide updates as more information becomes available.
The U.S. State Department has suspended normal visa services at the U.S. embassy and consulates in Iraq after ordering nonemergency government personnel to leave the country. The move comes just days after the State Department cited “heightened tensions” in urging Americans not to travel to Iraq.
BAL Analysis: BAL urges companies with personnel in Iraq to account for all of their employees and closely monitor events. The State Department has urged nonemergency personnel to depart Iraq as soon as possible, avoid U.S. facilities in Iraq, monitor local media and review personal security plans. Normal U.S. visa services have been suspended. Those in urgent need of immigration services are encouraged to contact BAL immediately.