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The U.S. Senate voted Monday to end the government shutdown, with the immigration debate at the center of the negotiations. After Republicans promised to continue to discuss a legislative solution for the Deferred Action for Childhood Arrivals program, Democrats agreed to pass a stopgap spending measure.
The Senate measure, which requires approval by the House, will fund the government until Feb. 8. The House is expected to approve the measure Monday afternoon.
The impasse broke after Senate Majority Leader Mitch McConnell promised Democrats a vote on an immigration bill to protect the estimated 800,000 undocumented youths, known as Dreamers. Democrats and Republicans will have three weeks to negotiate a deal on the Dreamers before the temporary funding measure expires. McConnell promised that if they cannot reach a deal by Feb. 8, “it would be my intention to take up legislation here in the Senate that would address DACA, border security and related issues as well as disaster relief.”
BAL Analysis: Federal agencies and immigration-related services affected by the shutdown should resume after the Senate measure is approved by the House. While the government shutdown may end for now, lawmakers will need to reach an agreement within three weeks or pursue immigration legislation after Feb. 8. BAL will be providing legislative updates shortly.
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.
Nonessential government functions, including many related to immigration, were suspended Saturday after Congress failed to reach an agreement on a spending plan to keep the government operating. Lawmakers intend to continue budget talks over the weekend, hoping to come to an agreement on a spending measure to reopen the government. A number of immigration services will be impacted until a deal is reached.
Key points:
Background: Immigration is at the heart of the budget fight, with Democrats pushing for protection for the Deferred Action for Childhood Arrivals (DACA) program as part of any long-term deal. The two sides could not come to an agreement Friday leading to the first government shutdown since 2013.
BAL Analysis: The shutdown will have a significant effect on a number of immigration services, particularly if it is prolonged. BAL will continue to follow developments related to the budget negotiations, and will alert clients to any significant developments. Those with urgent immigration needs that may be affected by the shutdown should contact their BAL professional immediately to discuss the best options currently available.
The federal government is on the verge of shutting down, with lawmakers scrambling to come to an agreement on a last-minute spending measure. Immigration has been the key sticking point in budget negotiations, with many Democrats saying that they will vote against a spending bill if it does not include protection for the Deferred Action for Childhood Arrivals (DACA) program.
If no deal is reached on either a budget or a short-term spending measure to fund the government while negotiations continue, a number of services, including immigration programs, would be suspended beginning at midnight tonight.
In the event of a shutdown, the Department of Labor would suspend operation of its immigration functions. United States Citizenship and Immigration Services (USCIS) and the State Department would continue processing visas, though delays would be likely. A number of immigration programs would be unavailable until they are reauthorized, including the E-Verify program, the Conrad 30 waiver for J-1 physicians, the Special Immigrant Religious Workers program, and the EB-5 regional center investor program.
A detailed BAL FAQ on how a government shutdown would affect immigration programs is available here.
BAL Analysis: BAL will continue following events in Washington, D.C., and will provide clients with an update if the situation changes.
U.S. Citizenship and Immigration Services (USCIS) announced Thursday that Haitian nationals who want to maintain their Temporary Protected Status (TPS) through the effective termination date of July 22, 2019, must re-register before March 19, 2018.
BAL Analysis: Haitian nationals who wish to extend their TPS must re-register before March 19, 2018. TPS for Haitians is due to expire July 22, 2019, and the DHS has advised Haitians with TPS to either prepare for their departure from the U.S. or to apply for other types of visas between now and that time.
U.S. Immigration and Customs Enforcement (ICE) is reportedly preparing for major immigration sweeps in California, aiming to target undocumented immigrants in San Francisco and other Northern California cities.
Media outlets, including the San Francisco Chronicle, have reported that federal agents are looking to detain as many as 1,500 undocumented immigrants, focusing in particular on immigrants who have been served with deportation orders or have a criminal record.
ICE has not commented on any plans for such an operation, though Acting ICE Director Thomas Homan has criticized California’s “sanctuary state” bill and said that ICE would take action against undocumented immigrants in sanctuary cities, including in California.
BAL Analysis: BAL is expecting increased worksite enforcement efforts in California in the coming weeks and months. News of a possible immigration sweep in the state follows a nationwide immigration crackdown at dozens of 7-Eleven stores and statements from Homan last fall that ICE would dramatically increase the number of worksite visits. Employers should be aware of the steps ICE is taking to ramp up inspections. Employers are encouraged to conduct internal audits to ensure that they are in 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.
U.S. Citizenship and Immigration Services (USCIS) announced today that Salvadoran nationals who want to maintain their status through the effective termination date of Sept. 9, 2019, must re-register between Jan. 18, 2018 and March 19, 2018.
BAL Analysis: Salvadoran nationals who wish to extend their TPS status must re-register before March 19, 2018. TPS status for Salvadorans is due to expire Sept. 9, 2019, and DHS has advised Salvadorans with TPS to prepare for their departure from the U.S. or apply for other types of visas between now and that time.
U.S. Citizenship and Immigration Services has announced that in February 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 February 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 February.
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 February Visa Bulletin.
BAL Analysis: This will affect Chinese and Indian nationals in the second and third preference categories, and Philippine nationals in 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.
A federal judge in San Francisco has ordered a temporary halt to the Trump administration’s plan to end the Deferred Action for Childhood Arrivals (DACA) program.
Background: President Barack Obama established DACA in 2012, moving to allow hundreds of thousands of people who were brought to the United States illegally as children to remain in the country and apply for work authorization. The Trump administration announced on Sept. 5 that it would end DACA, saying the program represented an unlawful exercise of executive authority. The program was set to expire March 5 before Alsup’s ruling was issued Tuesday night. Trump has said he remains open to a legislative fix for DACA. He met with lawmakers Tuesday, indicating he would sign legislation to protect DACA recipients if it were combined with other measures, such as funding for a border wall and additional measures to prevent immigrants from bringing family members to the U.S. No agreement has yet been finalized.
BAL Analysis: Tuesday’s ruling was welcomed by supporters of the DACA program, but the administration is likely to appeal the ruling. BAL will continue to follow judicial and legislative developments related to DACA and will alert clients to any significant changes.
U.S. Immigration and Customs Enforcement (ICE) agents raided dozens of 7-Eleven convenience stores early Wednesday, providing audit notifications and asking employees about their immigration status. ICE officials said the operation was the largest immigration enforcement effort of its kind since President Donald Trump took office nearly a year ago.
The raids were one of the clearest indications yet of how serious the Trump administration is about stepping up worksite enforcement checks. In October, ICE Acting Director Thomas Homan stated that ICE would dramatically increase the number of worksite visits. ICE officials described Wednesday’s operations targeting 7-Eleven as a “harbinger” of what employers should expect and said that enforcement would not be limited to large employers or specific industries.
“Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable,” Homan said in a statement posted to the ICE Twitter feed.
BAL Analysis: Employers should be aware of the steps ICE is taking to ramp up inspections. Employers are encouraged to conduct an internal audit to ensure that they are in 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.
Following recent news reports that U.S. Citizenship and Immigration Services was planning a policy change that would prevent H-1B workers caught in the green card backlog from extending their status, the agency is indicating now that it is not pursuing such a proposal.
McClatchy DC reported on Dec. 31 that USCIS planned to reinterpret current law in a way that would stop H-1B workers from extending their status while awaiting final adjudication of their green card applications. Under the American Competitiveness in the 21st Century (AC21) Act, USCIS officers may grant extensions to H-1B status beyond six years for green card applicants who have an approved I-140 immigrant petition but who are unable to adjust status due to per-country limits. Since the statute was implemented in 2002, USCIS officers have consistently exercised their discretion to allow such extensions.
USCIS has now told McClatchy that while it will conduct a thorough review of employment-based visas, it has no plans to make a regulatory change that would reinterpret the H-1B extension provisions of AC21.
“USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” said USCIS chief of media relations Jonathan Withington, as quoted Tuesday in McClatchy DC. He denied that the agency was ever considering the change. According to McClatchy, however, the proposal had drawn a sharp reaction from business leaders, causing USCIS to rethink its position. The move would have potentially affected hundreds of thousands of H-1B employees.
BAL Analysis: USCIS’ indication that it is not pursuing a policy change on H-1B extensions under AC21 is welcome news for the business community. The agency, however, will continue to pursue initiatives and regulations that limit employment-based visa categories and criteria.