December 2018 Newsletter
In This Issue
DHS to Propose 'Merit-Based' Rule for H-1B Visa Program
The Department of Homeland Security (DHS) will publish a notice of proposed rulemaking on December 3, 2018, that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. USCIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption, with the goal of increasing the number of beneficiaries with master's or higher degrees from U.S. institutions of higher education to be selected for H-1B cap numbers and introducing "a more meritorious selection of beneficiaries."
USCIS noted that the H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree in the specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted toward the number of petitions projected as needed to reach the cap.
The proposed rule includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS "may experience technical challenges with the H-1B registration process and/or the new electronic system." The proposed temporary suspension provision would also allow USCIS to "up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process." If the rule is finalized as proposed but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS said it would likely suspend the proposed registration requirement for the FY 2020 cap season.
Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries. The proposed rule would reverse the selection order and count all registrations or petitions toward the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions toward the advanced degree exemption. This proposed change "would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries," USCIS said. The proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master's degree or higher from a U.S. institution of higher education, the agency noted.
USCIS said it expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for the agency. The proposed rule would "help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process," USCIS said. "This would help reduce wait times for cap selection notifications." The proposed rule also would limit the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration, "which would protect the integrity of this registration system."
USCIS indicated that the proposed rule is being issued in response to an April 18, 2017, executive order instructing DHS to "propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system." The executive order specifically mentioned the H-1B program and directed DHS and other agencies to "suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."
Public comments must be received by January 2, 2019.
Read the announcement.
Read an advance copy of the proposed rule.
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New Developments at Southern Border: Temporary Restraining Order Bars Trump Administration From Changing Asylum Law; Trump Spars With Chief Justice; No Agreement With Mexico Yet
U.S. District Judge Jon Tigar, of San Francisco, California, has issued a temporary restraining order blocking President Trump's presidential proclamation and a new rule preventing certain types of asylum claims along the southern border of the United States. The order will remain in effect until a court hearing on December 19, 2018.
President Trump had issued the presidential proclamation targeting potential mass migration through the southern border of the United States with Mexico in response to reports of a "caravan" of a large number of people primarily from Central America with a stated goal of entering the United States. Several thousand members of the caravan are waiting in Tijuana, Mexico, and more are expected. On November 9, 2018, the Departments of Justice and Homeland Security published a related interim final rule limiting asylum claims, and the Executive Office for Immigration Review and U.S. Citizenship and Immigration Services released guidance. The American Civil Liberties Union, the Southern Poverty Law Center, the Center for Constitutional Rights, and other groups immediately sued, claiming that the proclamation and rule violated asylum applicants’ rights.
The court agreed: "The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the [Immigration and Nationality Act] and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." The court also said that the government offered nothing in support of the new rule that outweighed the need to avoid harm to potential asylum seekers, including increased risk of violence and other harms at the border. Among other things, the court also noted that "the application of the Rule will result in the denial of meritorious claims for asylum that would otherwise have been granted. That means that persons who are being persecuted on the basis of their religion, race, or other qualifying characteristic, to whom the United States would otherwise have offered refuge, will be forced to return to the site of their persecution."
After the ruling, President Trump said, "This was an Obama judge, and I'll tell you what, it's not going to happen like this anymore. Everybody that wants to sue the U.S.—almost—they file their case in the Ninth Circuit, and it means an automatic loss. No matter what you do, no matter how good your case is. And the Ninth Circuit is really something we have to take a look at, because it's not fair." In an unusual move, John Roberts, Chief Justice of the U.S. Supreme Court, admonished President Trump for referring to Judge Tigar as an "Obama judge." "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
On November 24, 2018, President Trump tweeted, "Migrants at the Southern Border will not be allowed into the United States until their claims are individually approved in court. We only will allow those who come into our Country legally. Other than that our very strong policy is Catch and Detain. No 'Releasing' into the U.S."
Initial reports following the court's order said that Mexican officials had agreed to hold migrants in Mexico while their asylum claims were processed in the United States. But the incoming foreign minister, Marcelo Ebrard, reportedly said the United States had not yet sent a "specific proposal" and that such an agreement had not been reached. The new president of Mexico, Andres Manuel Lopez Obrador, took office on December 1, 2018. Reportedly, he hopes to negotiate an agreement with the United States to contain Central American migration in exchange for U.S. aid to the region.
Meanwhile, many migrants moved to a new border shelter in the Tijuana, Mexico, area near the U.S. border, where thousands have congregated, while others decided to return home. Some said they would look for work in Mexico. A group of several hundred reportedly attempted to rush the border but were turned back by U.S. border agents.
Read the temporary restraining order.
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DHS, DOL Publish Joint Proposed Rule to Require Electronic Advertising Instead of Print for H-2B Recruitment
The Departments of Homeland Security and Labor (Departments) have published a joint notice of proposed rulemaking (NPRM) that would "modernize" the recruitment requirements for employers seeking H-2B nonimmigrant workers to fill temporary nonagricultural jobs "to make it easier for U.S. workers to find and fill these open jobs."
The proposed rule would require electronic advertisements to be posted on the Internet for at least 14 days, replacing the print newspaper advertisements that regulations currently require. The Departments said they believe "this is a more effective and efficient way to disseminate information about job openings to U.S. workers." The Departments believe that electronic advertisements, posted on websites that U.S. workers in the area of the job opportunity would use, would best ensure that U.S. workers learn of job opportunities. The joint rule proposes phasing out the current requirements with a limited transition period. During the transition, employers would be able to choose between print and electronic advertisements. According to the Departments, this provision should provide flexibility for employers who may have already purchased print advertising or have advertising contracts in place.
The proposed rule would not mandate that an employer post its advertisement on a specific website but rather would allow an employer to place an advertisement on any of a variety of websites that are widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment, including websites that specialize in advertising job opportunities for the specific industry or occupation, and websites that specifically serve the local area, such as localized online job listing services and digital classified sections of local newspapers. The proposed rule also contemplates the use of websites that are not specifically directed at workers in the area of intended employment or the particular occupation, so long as the website is appropriate for the occupation and adequately serves the area of intended employment.
To assure that the job opportunity described in the advertisement is readily available to U.S. workers, the proposed rule would require that the advertisement be publicly accessible at no cost to an applicant. To meet this requirement, the website on which the advertisement is placed cannot require U.S. workers to pay fees to establish personal accounts or make payments of any kind to view the advertisement. The website must also be functionally compatible with the latest commercial Web browser platforms and easily viewable on mobile smartphones and similar portable devices.
The proposed rule would require an employer to print and retain screen shots of the Web pages on which its advertisement appears and screen shots of the Web pages establishing the path used to access the advertisement. Although the proposed rule does not require employers to submit this documentation with their recruitment reports, an employer must nevertheless retain this documentation and provide it to the Department of Labor in the event of an audit or other review, the NPRM states.
A transition provision would permit an employer submitting an Application for Temporary Employment Certification with a date of need before October 1, 2019, to place either (a) an electronic advertisement in accordance with the requirements in the proposed rule, or (b) two newspaper advertisements in accordance with existing requirements. Because the Departments are proposing to have this rule take effect immediately upon publication of the final rule, the Departments are including this transition period "to provide flexibility to employers that seek additional time to understand and comply with the proposed regulatory revisions, while simultaneously permitting employers that wish to place electronic advertisements immediately upon the effective date of the final rule the ability to do so," the NPRM states. The transition provision is intended "to better ensure, among other things, that employers who have purchased newspaper advertising space in advance do not lose the benefit of such purchase."
The Departments invite comments on whether they should establish qualifying criteria (e.g., the minimum number of unique visitors per month), or define the types of websites on which an employer may place an electronic advertisement under the proposed rule, and whether the rule should exclude websites maintained by the employer and/or the employer-client of a job contractor seeking to employ H-2B workers. The Departments also solicit comments on whether, instead of eliminating print newspaper advertisements, they should offer electronic advertisements as an alternative means of satisfying the existing print advertising requirement. The Departments are not proposing this option, but they invite comments on whether there are employers that lack the technology or Internet access necessary to place the electronic advertisements described in the proposed rule, and if so, how the Departments should determine whether such employers have met their obligation to recruit U.S. workers. For example, the Departments noted that they could leave current recruitment requirements in place as an option for such employers. The Departments solicit comments on whether there are alternative methods that would more broadly and effectively disseminate information about available job opportunities to U.S. workers.
Comments may be submitted, using one of the methods provided in the NPRM, by December 10, 2018.
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USCIS Clarifies L-1 One-Year Foreign Employment Requirement
U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum, effective November 29, 2018, clarifying the requirement that a qualifying organization employ a principal L-1 beneficiary abroad for one continuous year out of the three years before the time of petition filing ("one-year foreign employment requirement"). USCIS said this clarification is intended to ensure consistent adjudication of L-1 petitions by providing a standard basis for calculating time for the one-year foreign employment requirement.
USCIS explained that the L-1 nonimmigrant classification allows a U.S. employer to transfer an executive or manager (L-1A) or an employee with specialized knowledge (L-1B) from one of its qualifying foreign offices to one of its offices in the United States. This classification also allows a foreign company that does not yet have a U.S. office to send an executive or manager, or specialized knowledge employee, to the United States to establish one.
Specifically, the policy memo explains that:
In a related announcement, USCIS said, "In support of the Buy American and Hire American Executive Order, USCIS is reviewing all employment-based immigration programs to eliminate fraud and ensure consistent adjudications. USCIS has not previously provided specific policy guidance with respect to the conditions by which the three-year clock may be stopped for purposes of determining whether the one-year foreign employment requirement for L-1 beneficiaries has been met. This [memo] improves the process for adjudicating the L-1 nonimmigrant benefit by clarifying the calculation guidelines to ensure they are applied consistently to all L-1 petitions."
Read the announcement.
Read the policy memo.
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University of California Wins Preliminary Injunction in DACA Ninth Circuit Appeal
In an action challenging the Department of Homeland Security's rescission of Deferred Action for Childhood Arrivals (DACA), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's grant of preliminary injunctive relief stopping termination of the program.
In 2017, Acting Secretary of Homeland Security Elaine Duke issued a memorandum rescinding DACA. The University of California and others filed lawsuits, which were consolidated. Among other things, the Ninth Circuit concluded that plaintiffs had stated a plausible equal protection claim under the U.S. Constitution.
The court noted that the Supreme Court’s recent decision in Trump v. Hawaii does not foreclose this claim. There, statements by President Trump allegedly revealing religious animus against Muslims were at the heart of the plaintiffs' case, the court noted. Here, plaintiffs provided "substantially greater evidence of discriminatory motivation, including the rescission order's disparate impact on Latinos and persons of Mexican heritage, as well as the order's unusual history. Moreover, our case differs from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States,…the lack of a national security justification for the challenged government action, and the nature of the constitutional claim raised," the court said.
The court said that the rescission of DACA was based "solely on a misconceived view of the law" and is reviewable, and that plaintiffs are likely to succeed on their claim that it must be set aside under the Administrative Procedure Act (APA). The court therefore affirmed the district court's entry of a preliminary injunction, and said that the district court also properly dismissed plaintiffs' APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government's motion to dismiss plaintiffs' APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection, the Ninth Circuit said.
The court noted:
The Executive wields awesome power in the enforcement of our nation's immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.Judge Owens concurred in the judgment but disagreed with the portion of the majority's opinion stating that the court may review the rescission of DACA for compliance with the APA. He noted that DACA's rescission may be reviewed for compliance with the Constitution. "I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment, and that the district court correctly denied the government's motion to dismiss this claim," he said.
Judge Owens noted that, as the majority detailed, the record assembled at this early stage was promising. "Plaintiffs highlight (1) the disproportionate impact DACA's rescission has on 'individuals of Mexican heritage, and Latinos, who together account for 93 percent of approved DACA applications'; (2) a litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central America; and (3) substantial procedural irregularities in the challenged agency action."
Read the Ninth Circuit's opinion, Regents of the University of California v. U.S. Department of Homeland Security.
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DOL Implements New LCA Form
The Department of Labor (DOL) announced several revisions to Form ETA-9035, the Labor Condition Application (LCA) for H-1B, H-1B1, and E-3 employment. Employers use the LCA to disclose the wages offered to professional temporary workers, as well as the prevailing wages for their occupation in the area of employment. The DOL has advised that a new LCA form incorporating these revisions was fully implemented in November 2018.
Important changes to the LCA form include requiring employers to indicate whether the H-1B, H-1B1, or E-3 worker will be placed at a third-party worksite, and requiring disclosure of the name and address of the third-party organization. The revised form will require employers to identify all intended places of employment and estimate the total number of foreign workers at each anticipated worksite. The new form also institutes additional requirements for H-1B dependent employers and willful violators.
Even if employers do not regularly place workers at worksites they do not control, they should consider the impact of the new rule on H-1B sponsorship by their contractors, the Alliance of Business Immigration Lawyers (ABIL) notes. If a vendor supplies workers to the employer as a contractor, that employer's name will now be publicly disclosed by the Department of Labor. Employers who want to review their contractual arrangements with vendors who sponsor workers from abroad should contact their local ABIL attorney.
As of November 19, 2018, the new LCA form has become mandatory, meaning that H-1B, H-1B1, and E-3 employers filing an LCA must use the revised form and comply with the new third-party worksite disclosure requirements. Certified LCAs submitted before November 19 will remain valid until they expire.
This revised LCA form marks the first time that the DOL has inquired in detail about third-party placements and required H-1B employers to disclose end-client or vendor names. Earlier this year, in a February 2018 policy memorandum, USCIS enacted similar requirements for H-1B petitions involving third-party worksites. The DOL states that these heightened requirements for H-1B third-party worksite petitions are aligned with the DOL's June 6, 2017, news release directing agencies to increase protections for U.S. workers and "aggressively confront visa program fraud and abuse."
Click here for the new LCA form and instructions.
Read the February 2018 policy memo.
Read the June 2017 news release.
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USCIS, CBP Extend Form I-129 Pilot Program for Canadian L-1 Nonimmigrants
U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) are extending the joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA) through April 30, 2019. Earlier this year, the USCIS California Service Center (CSC) and the CBP Blaine, Washington, port of entry (POE) announced this pilot program, which was scheduled to run from April 30, 2018, through October 31, 2018.
The pilot program allows, but does not require, Canadian citizens to request that USCIS remotely adjudicate their petitioning employer's Form I-129 or I-129S before their arrival or when they arrive at the Blaine POE. USCIS continues to encourage these Canadian citizens and their petitioning employers to email with feedback on their experience with the pilot program. Over the next six months, USCIS said, it and CBP will continue to work together to determine the efficiency of the program, identify shortcomings, and look for ways to improve it.
Read the latest USCIS announcement.
Click here for more information on the pilot program.
Read the earlier pilot program announcement.
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USCIS Reissues Receipt Notices for Extensions of Conditional Permanent Resident Status
On October 16, 2018, U.S. Citizenship and Immigration Services (USCIS) began issuing new receipt notices for certain Forms I-751, Petition to Remove Conditions on Residence, to replace previously issued receipt notices containing inaccurate information.
In August 2018, USCIS issued receipt notices for certain pending I-751 petitions to extend conditional permanent resident (CPR) status from 12 months to 18 months. USCIS said it issued these receipt notices to provide an additional six months of CPR status to the I-751 petitioners while they continue to wait for their petitions to be adjudicated. Some of the receipt notices contained incorrect information that does not affect the extension of the CPR status, USCIS noted.
Petitioners who received incorrect receipt notices will receive corrected ones shortly, USCIS said. The agency asks those who have not received a corrected receipt notice by November 15, 2018, to notify the USCIS Contact Center.
Read the USCIS notice, which includes additional details depending on the situation.
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New Publications and Items of Interest
Flyers for TPS/DED workers and naturalized U.S. citizens. The Department of Justice's Immigrant and Employee Rights Section (IER) recently revised two informational flyers for the public. One is for workers with temporary protected status or deferred enforced departure, available in Arabic, English, Haitian Creole, Nepali, Somali, and Spanish. The second is addressed to newly naturalized U.S. citizens, available in English and Spanish. The flyers are available on IER’s Worker Information page, along with additional information on civil right protections against immigration-related employment discrimination.
Webinars for employers and employees. IER is presenting webinars for employers and employees. Upcoming topics include IER Training for Worker Advocates; IER Training for Employers/Human Resources Representatives; Joint IER/USCIS Employee Rights Webinar; IER, ICE, USCIS Tri-Agency Employer Responsibilities Webinar; and Joint IER/USCIS Employee Rights Webinar.
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News
Kehrela Hodkinson participated as Discussion Leader for an American Lawyers Association teleconference on the topic of visa processing in London. She has also been invited to serve on the Editorial Board of the AILA Law Journal which will cover current and pragmatic topics related to the rapidly changing immigration law landscape and will be produced biannually, commencing 2019. She enjoyed celebrating her daughter’s wedding in November with many members of her extended family who travelled to the UK to join in the wedding festivities.