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United States Citizenship and Immigration Services (USCIS) has announced that Syrian nationals who want to maintain their Temporary Protected Status (TPS) through Sept. 30, 2019, must re-register between now and May 4, 2018.
Key points:
Background: The Department of Homeland Security announced earlier this year that it would extend Temporary Protected Status (TPS) for nationals of Syria who qualify for the program. The Trump administration has moved to end TPS designation for a number of countries, but opted to extend it for Syria citing “extraordinary conditions” that support the country’s ongoing TPS designation.
BAL Analysis: Syrian nationals who wish to extend their TPS must re-register before May 4, 2018. The decision to extend TPS for Syrians reflects DHS’s conclusion that Syria remains extremely dangerous. DHS will review conditions in Syria at some point before Sept. 30, 2019, to determine whether TPS should be extended again.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 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.
The Department of Homeland Security has indicated that it will delay a proposed rule to rescind the H-4 regulation until June, according to a status report the agency gave in a court filing Wednesday. The H-4 regulation currently allows spouses of certain H-1B workers in the U.S. to apply for employment authorization documents, or EADs.
Background: The update was filed in the context of a lawsuit brought by a group of tech workers who are challenging the Obama-era H-4 regulation. On Feb. 21, the court granted DHS’s request to hold the lawsuit in an abeyance based on the agency’s assertion that it would begin the rulemaking process to rescind the H-4 regulation in February.
BAL Analysis: Eligible H-4 spouses will continue to be able to apply for EADs until a final regulation rescinding the current rule takes effect. The rulemaking process takes approximately five months from proposed rule to final regulation, so the earliest date that DHS would issue a final regulation would likely be November.
Immigration and Customs Enforcement confirmed Tuesday that it has conducted immigration sweeps in Northern California since Sunday, arresting 150 individuals in several Bay Area cities including San Francisco, Bay Point, Sacramento and Stockton. The raids come less than two weeks after a sweep that targeted the Los Angeles area and resulted in the detention of 100 individuals.
In January, California implemented a “sanctuary state” law that limits local and state law enforcement cooperation with federal authorities on immigration enforcement. Another state statute that took effect in January, the Immigrant Worker Protection Act, restricts employers from voluntarily giving federal immigration enforcement officials access to their premises or to employee records.
BAL Analysis: California employers should be aware of the increased ICE activity. Employers are encouraged to review their compliance with Form I-9 requirements. BAL can assist in conducting a review and compliance audit of employers’ Form I-9 employment eligibility verification policies and practices.
The Supreme Court on Monday declined to hear an expedited appeal of a case challenging President Donald Trump’s decision to end the Deferred Action for Childhood Arrivals program.
Federal judges in California and New York have blocked the administration’s repeal of DACA while legal challenges to the administration’s actions play out in court. The Justice Department asked to appeal the California decision directly to the Supreme Court, but the Court’s decision Monday means the department instead will have to appeal both cases to the circuit court level first. This could push the time frame for the Supreme Court to hear the case into its next term, meaning that the DACA program could remain in place until at least the fall, unless the lower court decisions are reversed in the Ninth and Second Circuit courts of appeals.
BAL Analysis: It is very unusual for the Supreme Court to hear a case from a district court without an appellate court review, so today’s decision is not surprising. The decision means the Court will not likely hear the case until its next term in the fall, and the government could continue accepting renewal applications until then. However, the courts of appeals may issue decisions before the fall. Even if the courts allow the injunctions to remain in place, the administration can still try to end DACA through rulemaking, requiring formal notice and comment. BAL continues to recommend that employers plan for the end of DACA and is available to help companies understand their obligations and restrictions regarding DACA employees.
U.S. Citizenship and Immigration Services published a policy memorandum Thursday related to H-1B petitions filed for workers who will be employed at third-party worksites. The agency states that significant employer violations may be more likely to occur when petitioners place employees at third-party worksites, so it has issued a guidance to adjudicators. The memo states that when a beneficiary will be placed at one or more third-party worksites, the petitioner will be required to demonstrate that it has a specific and non-speculative qualifying assignment in a specialty occupation for the beneficiary for the full duration requested on the petition.
BAL Analysis: The policy memorandum will increase administrative requirements for employers who assign H-1B visa holders to third-party worksites. BAL will provide additional information in the coming days.
U.S. Citizenship and Immigration Services has announced that in March it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s March Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. 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 March.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the March Visa Bulletin.
BAL Analysis: The announcement will affect Chinese and Indian nationals in the second and third preference categories, and Philippine nationals in the third preference category. For other nationalities, the categories are current in both the Final Action and Dates for Filing charts for employment-based first, second and third preferences.
The U.S. Court of Appeals for the D.C. Circuit heard oral arguments Tuesday on a challenge to the legality of the STEM-OPT regulations.
The challenge was brought by the Washington Alliance of Technology Workers (WashTech), which claimed that the regulations violate the Administrative Procedures Act, discriminate against American tech workers and increase the number of foreign employees in direct competition with U.S. workers for tech jobs. The lawsuit was dismissed in the district court, which found that WashTech lacked standing to challenge the underlying 1992 OPT rule and did not allege sufficient facts to assert their claim against the 2016 STEM- OPT regulation.
The 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to extend their one-year Optional Practical Training (OPT) period for an additional 24 months. The 1992 regulation, which WashTech is also challenging, introduced the one-year OPT for certain F-1 students.
BAL Analysis: While the Trump administration is reportedly considering new regulations to limit or eliminate STEM-OPT, the government defended the decision of the district court to dismiss the case on procedural grounds. Observers consider it likely that the court of appeals will affirm the lower court’s dismissal of this lawsuit. BAL will continue to monitor any developments regarding the STEM OPT program and will alert client to any significant changes.
The U.S. State Department is increasing its Passport Acceptance fee from $25 to $35 on April 2.
Background: The State Department assesses two fees for applicants using Form DS-11 – one for the State Department and the other for the passport acceptance facility, such as a post office or other office designated to accept passport applications. The State Department has decided to increase the acceptance fee after finding that the current fee does not adequately cover the cost of executing the service.
BAL Analysis: Applicants should prepare for the fee increase that takes effect April 2.
The United States Court of Appeals for the 4th Circuit issued a 9-4 ruling Thursday that upholds a Maryland district court decision, stating that the most recent version of President Donald Trump’s travel ban likely violates the Constitution’s Establishment Clause by discriminating against Muslims. The 4th Circuit’s ruling joins a Dec. 22 9th Circuit ruling upholding the decision of a Hawaii district court that determined that the ban was likely an unlawful exercise of presidential authority under the Immigration and Nationality Act.
The ruling will have little immediate impact, because the Supreme Court ruled in December to let the ban remain in place pending Supreme Court review. The Supreme Court has agreed to hear the case this term. Oral arguments are scheduled for April and a decision is expected no later than June.
At the time the Supreme Court allowed the ban to remain in place, two district court rulings were in conflict even though they both reached the conclusion that the ban should be put on hold. While the Hawaii court ruling stated that the ban exceeded the scope of the statutory authority, the Maryland district court stated that the ban was within the president’s statutory authority, a point that may have undermined arguments against the ban when it was considered by the Supreme Court. While the 4th Circuit’s decision was based primarily on Constitutional grounds, however, the court also agreed with the 9th Circuit that the ban exceeds the president’s statutory authority. This could improve the chances that the Supreme Court will rule against the ban.
The latest version of Trump’s travel ban was issued in September after two earlier versions were met with resistance in the courts. The current ban applies to nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Exact restrictions are specific to each country. The ban has not dramatically expanded the number of employees subject to travel restrictions for most companies. BAL released an FAQ on the restrictions when they were released in September. The analysis is available here.
BAL Analysis: The Supreme Court will have the opportunity to settle the legal questions that have surrounded the travel ban and its earlier iterations for almost a year. While the Court had already agreed to determine the legality of the ban, the 4th Circuit’s ruling did provide legal reasoning that could play a role in influencing the justices’ final decision.
California Attorney General Xavier Becerra has released an advisory providing guidance on the Immigrant Worker Protection Act, which went into effect Jan. 1, and the state Labor Commissioner’s Office has issued an FAQ to help employers comply with the law. Generally, employers are prohibited by the law from voluntarily giving federal immigration enforcement agents access to nonpublic worksite areas or employee records. The law also requires that employers provide notice to all workers within 72 hours of receiving a Notice of Inspection of the employer’s I-9 Employment Eligibility Verification forms. Employers are subject to certain penalties for each violation of the provisions.
Employers are prohibited from giving voluntary consent to federal immigration enforcement agents to gain access to nonpublic areas of the workplace unless the agent shows a judicial warrant.
Employers are prohibited from giving voluntary consent to federal immigration agents to access, review or obtain employee records unless the agent shows a subpoena or judicial warrant.
Employers must post a notice within 72 hours of receiving an I-9 notice of inspection to all current employees in a language normally used to communicate with employees.
Other prohibitions
BAL Analysis: While the advisory and FAQ provide many helpful clarifications, they also make clear that the determination of whether an employer has violated the new law will depend on individual circumstances and a case-by-case assessment. California employers are encouraged to consult legal counsel on how to prepare for an immigration enforcement inspection and comply with the Immigrant Worker Protection Act.