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The Department of Homeland Security has given Louisiana, Michigan and New York extensions to comply with the REAL ID Act by Oct. 10. Currently, only American Samoa and the Northern Mariana Islands risk being out of compliance on Jan. 22, when the Transportation Security Administration begins enforcement of the REAL ID Act.
The Act requires that driver’s licenses and other forms of state-issued IDs meet certain criteria to be accepted for commercial domestic flights.
Key points:
BAL Analysis: As DHS moves toward enforcing the REAL ID Act, the majority of states (26) have been granted extensions, which allow their residents to continue to use state-issued driver’s licenses at airport security when boarding domestic flights until Oct. 10, 2018.
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 Trump administration announced Monday that it will terminate Temporary Protected Status for El Salvador.
Key Points:
Background: The U.S. government granted temporary protections to Salvadorans in 2001 after two earthquakes killed more than 1,000 people. Since then, the designation has been renewed 11 times. In 2016, the Obama administration cited drought, poverty and gang violence as reasons to keep the temporary protections in place. DHS said in a statement Monday that the agency’s secretary, Kirstjen M. Nielsen, decided to end TPS for El Salvador based on “careful consideration of available information, including recommendations received as part of an inter-agency consultation process.” The Trump administration has already terminated TPS protections for Nicaragua, Haiti and Sudan, and a decision on Honduras is expected in July.
BAL Analysis: DHS is advising Salvadorans with TPS to prepare for their departure from the U.S. or apply for other types of visas during the transition period. BAL will continue to monitor the Federal Register for information about when the re-registration period to extend TPS benefits will open.
The Labor Department has posted processing times current as of Dec. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in August and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in May and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in December:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in October and earlier for H-1B cases and PERM cases. Redeterminations are being considered on appeals filed in December and earlier for H-1B cases and November and earlier for PERM cases. Center director reviews are being conducted on appeals filed in November and earlier for both H1B and PERM cases.
Average times for issuance of prevailing wage determinations in December:
The Labor Department reports PERM and PWD processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in August and earlier and is awaiting prevailing wage determinations for requests filed in October and earlier.
In response to the ramping up of federal immigration raids at places of work, California has enacted a law to provide certain protections to immigrant workers. The Immigrant Worker Protection Act (Assembly Bill 450) took effect Jan. 1, 2018 and imposes new state obligations on employers when approached by federal immigration inspectors. The law prohibits employers from allowing federal immigration enforcement agents to enter their premises without a warrant. The law also prevents employers from providing such agents access to employee records without a judicial warrant or subpoena, requires employers to notify employees before and after immigration inspections, and prevents employers from re-verifying the employment eligibility of current employees if not required by federal law. The law imposes monetary penalties of up to $10,000 per violation.
BAL has produced an FAQ to answer questions about the new law. California employers should be aware of their new legal obligations, consult counsel, and take steps to update their I-9 and related policies and procedures and train key staff on the law. Read the full FAQ by completing the form below.
The Department of Homeland Security may stop renewing H-1B extensions for individuals caught in the green card backlog, according to a McClatchy DC news bureau report on Saturday.
Currently, under the American Competitiveness in the 21st Century Act (AC21), DHS may grant an extension of H-1B status to an individual who is the beneficiary of a Form I-140 immigrant petition but who is unable to adjust status due to per-country limits. Since AC21 was passed in 2002, DHS has always approved H-1B extensions in this situation where a beneficiary is otherwise eligible for H-1B status.
McClatchy DC reports that DHS may now begin to apply a different policy on the basis that the statute is discretionary and that DHS may, but is not required to, approve an H-1B extension when the beneficiary is caught in the green card backlog due to per-country limits.
Where things stand:
Will this happen? While some political appointees may be advocating for a policy that forces H-1B workers to “self-deport,” it is not yet known whether there is a consensus within the administration to make that policy change. Traditionally, both Republicans and Democrats have supported relief for H-1B workers caught in the green card backlog, but some appointees in the Trump administration are focused on reducing the total number of H-1B workers in the U.S. workforce and may see this policy change as a means of attaining that goal.
BAL Analysis: The latest leak out of the Trump administration is a reminder that U.S. immigration policy will continue to be unpredictable in 2018 and that companies should develop global immigration policies and options to protect their workforce interests.
H.R. 392 (Fairness for High-Skilled Immigrants Act), a bill that would reduce the green card backlog by phasing out the per-country limits, has more than 300 cosponsors in the House of Representatives. Though there is no clear path for that legislation to move in Congress, it is a reminder that there is strong, bipartisan support to address the long wait times experienced by many H-1B workers in the U.S.
Copyright © 2017 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.
IMPACT – HIGH
What is the change? The United States and Turkey have announced that they will resume normal visa issuance in each other’s countries.
What does the change mean? According to statements posted by both countries’ embassies, normal visa issuance will resume at U.S. and Turkish diplomatic posts, lifting all restrictions. The U.S. and Turkey temporarily stopped issuing visas in each other’s countries in October, before resuming issuance on a limited basis in November.
Background: The U.S. and Turkey halted nonimmigrant visa issuance in each other’s countries in October following the arrest of a U.S. consulate worker in Turkey. Visa processing resumed on a limited basis in November. Both embassies posted statements Thursday saying that normal visa issuance will resume. The U.S. Mission to Turkey, which had expressed concern over the safety of its diplomats in Turkey, said that, based on assurances from the Turkish government, the U.S. State Department is “confident that the security posture has improved sufficiently to allow for the full resumption of visa services in Turkey.” The Turkish Embassy in Washington, D.C., said that, “in accordance with the principle of reciprocity, restrictions on visa services applied to American citizens have been lifted simultaneously.”
BAL Analysis: While the resumption of normal visa issuance in the U.S. and Turkey is welcome news, the diplomatic situation between the two countries remains fluid. Those planning to travel either from the U.S. to Turkey or from Turkey to the U.S. may wish to work with BAL to discuss their best visa options. Travelers should also take into account the possibility of delays due to a possible backlog of visa appointment slots and applications.
This alert has been provided by the BAL U.S. and Global Practice groups. For additional information, please contact your BAL attorney.
The Department of Homeland Security notified a federal court Friday that it will issue a proposed regulation in February to rescind the H-4 spousal work authorization regulation. DHS did not reveal any information about how it will terminate the regulation, including whether there will be a grace period for H-4 Employment Authorization Document (EAD) holders to renew their work authorization. The final regulation is not expected before the summer of 2018.
BAL Analysis: Though it is impossible to predict with certainty how a court will rule, BAL anticipates that the appeals court will hold the litigation in abeyance while DHS proceeds with the rulemaking. DHS has previously been granted three abeyances in the case to give the Trump administration time to consider whether to rescind the rule.
Even if the court decides to hear the merits of the case, BAL expects that DHS will continue its rulemaking process. A likely timeline is as follows: In February, DHS will publish a proposed rule with a request for public comments that is normally open for 30 days. DHS will need to review those comments, finalize the regulation, and allow for a 30-day delayed effective date for the final regulation. The earliest DHS is likely to publish the final regulation will be the summer of 2018. That timeline is consistent with the request by DHS to update the court by July 1, 2018, on the status of the rulemaking.
DHS did not reveal in the court filing any information about how it will rescind the regulation. Though BAL expects DHS will allow current EADs to remain valid through their duration, we do not yet know for certain whether DHS will provide a grace period during which time H-4 EAD holders can renew their work authorization. BAL is following developments on the H-4 EAD regulation and will report any updated information as it becomes available.
Congress passed a four-week spending bill Thursday, averting a government shutdown for now, but once again postponing difficult negotiations on budget disagreements. President Donald Trump signed the bill into law Friday.
Background: The House of Representatives and Senate approved the four-week spending bill Thursday, marking the second time this month that Congress opted for a short-term spending measure to avoid a shutdown. Elected officials will now grapple with budget disagreements in January, after the holiday break.
BAL Analysis: Congressional approval of the stopgap spending measure eliminates the possibility of a government shutdown for now. However, the short-term extension does little to resolve a difficult budget fight, which has now been pushed off into January.
Documents released by the White House in recent weeks suggest that the Trump administration is planning significant restrictions to the F-1 STEM OPT program in 2018.
While details have yet to be released, the Department of Homeland Security’s regulatory agenda and a national security strategy released by the White House this week shed light on the types of changes that are under consideration:
Background: The Optional Practical Training (OPT) program allows eligible F-1 students to apply for temporary employment authorization for a 12-month period. Students with degrees in science, technology, engineering or mathematics may apply for a 24-month “STEM OPT extension.” The Obama administration expanded the STEM OPT extension from 17 months to 24 months.
To be eligible for the STEM OPT extension, a student must have already been granted a 12-month OPT and hold a bachelor’s degree or higher in a STEM field from an accredited university verified by the Student and Exchange Visitor Program. Employers must meet all regulatory requirements, including enrollment in E-Verify. In fiscal year 2017, more than 33,000 students were granted employment authorization under the STEM OPT program.
Opponents of high-skilled foreign workers have repeatedly challenged the regulation in court. Washington Alliance of Technology Workers (WashTech) filed multiple lawsuits against DHS challenging the regulations, but the Obama administration successfully defended the regulation. The litigation remains ongoing in the U.S. Court of Appeals for the D.C. Circuit.
BAL Analysis: OPT and the STEM extension employment authorization both remain available until any changes are implemented. It is notable that both the national security strategy and the DHS regulatory agenda contemplate reforming and restricting OPT, as opposed to terminating the program outright. To achieve the goals outlined in the “Buy American, Hire American” Executive Order, Immigration and Customs Enforcement could seek to tighten OPT rules by imposing new wage restrictions or making other changes to better protect U.S. workers. The administration has not yet indicated how it would make the changes proposed by the national security strategy. The reforms to the OPT program proposed in the DHS regulatory agenda would be accomplished through proposed regulations, which means companies will have an opportunity to comment on the changes before they become effective.
United States Citizenship and Immigration Services has published a policy memorandum stating that it will restrict TN applications in the profession of economist to a narrow range of economic analysis duties.
BAL Analysis: The new guidance may have a major impact on financial firms. It reverses the previous USCIS practice of approving TN status for Canadian and Mexican nationals with economic degrees to work as financial analysts, market research analysts, and marketing specialists. Because the profession of “financial analyst” is not on the list of NAFTA professions, a determination by USCIS that a position primarily involves financial analyst duties could now result in denial of the TN application.