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Despite a major win in the Supreme Court, which ruled on June 18 that the Trump administration improperly terminated the Deferred Action for Childhood Arrivals (DACA) program, Dreamers remain in limbo, their fate closely tied to the election that is two months away.
There are an estimated 800,000 Dreamers, and about 90% are working for U.S. employers. More than 100 leading U.S. companies have publicly urged the president to keep DACA in place, warning that ending the program would jeopardize the economic recovery from COVID-19. With nearly 30,000 Dreamers working in medical professions, terminating DACA would also, as they argued before the Court, harm the healthcare response and medical research related to COVID-19.
The Department of Homeland Security responded to its Supreme Court defeat by first issuing a memorandum on July 28 that stated it would continue to accept only renewal DACA applications from those who are already DACA beneficiaries, not initial applications from first-time applicants—the same arrangement that has been in place by court order since 2018 when the legal challenges began. Then last week, the government released further guidance confirming that it would continue to process renewal applications only, and will limit renewals to one-year employment authorization documents instead of the usual two-year duration.
The DHS response not only flies in the face of the Supreme Court ruling, it puts Dreamers in an even more uncertain situation, since up until the ruling, DHS was under court injunctions to keep the status quo in place, which meant issuing renewals for the normal two-year period. DHS appears to buying time while the government decides its next move. It remains to be seen how courts will view the July 28 memo, which is now the subject of multiple lawsuits.
Meanwhile, some Dreamers report that they are being turned away from jobs because of the uncertainty of DACA’s future. In this unsettled environment, employers need to make sure that they are not violating the anti-discrimination provisions of the Immigration and Nationality Act or employment law provisions by treating DACA recipients differently than others with valid work authorization.
Shortly after the Supreme Court ruling, President Trump said his administration would begin the process of terminating DACA again. DHS could take action to terminate DACA at any time. This is because the legal issue has never been whether the administration had the authority to terminate DACA—all courts have agreed that it does—only whether it followed proper procedures and provided a reasoned analysis to support its actions. If Trump gets a second term, there’s little doubt his administration would attempt to terminate DACA again—only this time, like the Muslim bans that took more than one version to correct their legal flaws, DACA’s termination would likely be upheld.
Guillermo Ortiz is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
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.
On March 30, the State Department published new Foreign Affairs Manual (FAM) guidance for consular officers that changes the standard of proof for blanket L adjudications and is likely to increase the refusal rate for multinational companies with blanket L visa programs.
The previous guidance advised consular officers that L-1 visa adjudications based on blanket petitions should be determined on the basis of the “preponderance of evidence.” The revised FAM now places a higher burden on applicants, requiring them to demonstrate eligibility beyond a doubt. The new language instructs consular officers: “If you have any doubt whether an applicant has fulfilled his or her burden of proof, you must deny the visa.” 9 FAM 402.12-8(F).
The new guidance appears to be in line with the directives from the Trump administration to increase the restrictions on issuance of employment-based visas, both under the “Buy American and Hire American” executive order, which called for “rigorous enforcement” of immigration provisions relating to workers, and the “extreme vetting” directive on visa applications in the March 6, 2017 White House Memorandum “to rigorously enforce all existing grounds of admissibility and to ensure subsequent compliance with related laws after admission.”
As a result of these directives, companies have experienced a marked decline in L approvals, especially at U.S. consulates in India, where the number of L-1 visas issued declined from 51,981 to 41,523 from fiscal year 2016 to 2019—a 20% drop.
The new guidance not only increases the burden of proof—it may also make it harder for applicants to overcome consular officer concerns over visa eligibility. The new instructions give consular officers discretion over whether to even allow the applicant to present new evidence, and require that any new evidence be presented in the first visa interview, which would preclude consular officers from allowing the applicant to return in a later interview with new evidence:
If based on the applicant’s documentation, you have a reasonable basis for believing that the applicant has not provided sufficient proof that his or her application should be approved, you may give the applicant the opportunity to respond to questions or issues that may be quickly or easily resolved during the interview. However, if the questions or issues cannot be resolved during the interview, then you should deny the case per 9 FAM 402.12-8(G).
This is not the first time the State Department has attempted to strengthen standards for blanket L petitions. Last October, it quietly inserted language into the FAM that replaced the “preponderance of the evidence” standard with a “clear and convincing evidence” standard, but it withdrew this change the following month. This time, the department has come out with even stronger language, further raising the stakes for companies and requiring they prove visa eligibility to a near certainty. Companies that rely on blanket L visas to move personnel to U.S. operations should consult counsel to ensure that applications meet this new standard and to strategize around the likelihood of higher denial rates.
Jeffrey Gorsky is Senior Counsel in the Washington, D.C., office of Berry Appleman & Leiden LLP.
The information contained herein 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 in 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.
COVID-19 is slowing immigration processing, with U.S. consulates suspending routine visa services abroad and U.S. Citizenship and Immigration Services (USCIS) temporarily suspending premium processing and in-person services during the national emergency.
Nevertheless, companies that sponsor H-1B, labor certification and other immigration procedures for employees in the U.S. will be able to keep several processes moving and remain in compliance, thanks to new measures introduced by the Department of Homeland Security and the Labor Department.
Relaxed signature requirements
Employers who are enforcing social distancing in the workplace by mandating work-from-home policies are now permitted to file copies of signed USCIS forms during the national emergency. Although the original petition must still be printed and signed with a handwritten “wet” signature and retained, employers will be able to scan or copy (or use a scanner app on a mobile phone) the original signed petition containing the wet signature for submission to USCIS.
Relaxed I-9 verification procedures
Form I-9 verification procedures will also be temporarily eased for certain employers who have implemented telecommuting because of COVID-19. Usually, employers must inspect an employee’s documents in the employee’s physical presence. During the crisis, employers may inspect identity and employment authorization documents remotely via video, fax or email. DHS is allowing remote inspection for employers operating remotely. Notably, however, if any employees are physically present at a work location, the employer must follow normal in-person procedures. Employers who are eligible for the virtual inspection option should strictly adhere to procedures set out in the guidance to ensure that they are in full compliance during the National Emergency and after normal operations resume.
Longer deadlines
The agencies have also automatically extended several deadlines for immigration-related procedures. Employers will have more time to respond to a Notice of Inspection (NOI) issued by DHS. Companies who have not yet responded to an NOI that was issued this month are automatically allowed a 60-day extension from the effective date. At the end of the extension, DHS will decide whether to extend further. Employers now have until May 12, 2020 to respond to certain inquiries by the Labor Department’s Office of Foreign Labor Certification, such as a request for information, notice of deficiency, or notice of audit, if their original deadline to respond fell between March 13, 2020 and May 12, 2020.
Employers will also have more flexible deadlines for completing labor certification application (PERM) recruitment and H-1B Labor Condition Application (LCA) posting requirements. DOL issued guidance giving employers an additional 60 days to complete PERM-related recruitment, provided that the employer started recruitment on or after Sept. 15, 2019, and the PERM application is filed by May 12, 2020. This extension does not apply to employers who already completed recruitment within the normal deadline. Additionally, employers who started recruitment on or after Sept. 15, 2019 have an additional 60 days to post the PERM notice of filing.
Employers may be moving H-1B employees to new locations, such as work-from-home arrangements, because of COVID-19. Normally, the LCA must be posted on or within 30 days before the day the H-1B worker begins working at the new work location, but under temporary measures, employers have up to 30 days after the worker begins work at the new location to post the LCA.
These temporary measures, though modest, are a promising development in that they allow companies flexibility in meeting the competing obligations of social distancing and immigration compliance. It is hoped that the agencies will consider implementing additional measures that would ease immigration processes and compliance during these extraordinary times.
BAL will continue to engage with policymakers and advocate for measures to help clients mitigate delays and protect the health of their employees.
Lynn O’Brien is a Senior Associate in the Northern Virginia office of Berry Appleman & Leiden LLP.
Ask Congress, Not Courts, For Immigration Reform
The presidential race has brought heightened attention to immigration policy. One of the most important immigration issues has been quietly playing out in the courts and few people have noticed. Yet this one issue will have a ripple effect across the U.S. economy.
In approving the Trump administration’s application to lift an injunction in U.S. Department of Homeland Security v. New York last month, the U.S. Supreme Court sent a clear signal that a majority of the justices seriously question the viability of nationwide district court injunctions.
While the court’s ruling had the immediate effect of allowing the Trump administration to begin implementing its new wealth test for immigrants, the unusual written opinion by two of the justices expresses a viewpoint on the impropriety of this remedy that may have long-lasting effects on all jurisprudence, regardless of whether this particular immigration regulation survives legal challenge.
In a written concurrence, Justice Neil Gorsuch, joined by Justice Clarence Thomas, slammed nationwide injunctions for sowing confusion in the courts and foreshadowing that the court will have to deal with them.
This opinion, presaged by an op-ed article written by U.S. Attorney General William Barr in the Wall Street Journal titled, “End Nationwide Injunctions,” is not the first time members of the court have signaled that they are fed up with nationwide injunctions. And it will not be the last.
For several years now, it’s been a race to the courthouse to get a judge to slap an injunction on a disfavored policy. Conservatives seeking to block the Obama administration’s Deferred Action for Childhood Arrivals or Deferred Action for Parental Accountability initiatives, look for sympathetic judicial ears from federal judges in Texas; liberals trying to stop Donald Trump’s executive actions run to Massachusetts or Northern California. As a result, a single federal judge has been able to dictate national policy.
This trend has been particularly glaring in the context of immigration law. Why? Congress — which has plenary power over immigration law— has failed to act. The demise of the bipartisan Gang of Eight’s comprehensive immigration reform bill left a vacuum of leadership on immigration issues.
President Barack Obama used executive orders to initiate much-needed reforms (or sidestep Congress, depending on your viewpoint).
While eschewing Obama’s use of executive orders on the campaign trail, Trump has been even more prolific in exercising executive power, starting with the initial travel ban issued weeks after taking office. His administration has continued to issue executive orders and presidential proclamations on immigration at a breathtaking pace and volume with no apparent input from Congress.
The controversial nature of these developments has meant that immigration advocates have increasingly resorted to what they consider friendly jurisdictions to try and put a hold on these executive actions. And, the fact that the Trump administration too often has issued and sought to implement executive orders immediately, with no warning and no transition period, has created an urgency that many courts have found compelling in placing a temporarily hold on the proposed action while the lawsuit proceeds.
In a few cases, such as the travel ban executive orders, businesses have joined litigation filed to maintain the status quo so they could buy time to figure out the impact on their employees and develop policies necessary to adapt to the proposed changes. An estimated 40 nationwide injunctions have been issued over Trump’s policies in slightly over two years, more than double the number issued during the entire eight years of the Obama administration.
While your view of nationwide injunctions as good or bad may depend on whether you favor or disapprove of the underlying policy that is challenged, the reality is that these injunctive requests often place courts in difficult positions because they essentially are being asked to develop policy that would be a Congressional responsibility in a normal political climate.
This can take pressure off Congress to promptly do its job and take the steam out of efforts to build public consensus to support legislative action.
As Barr pointed out, Congress has been silent on the DACA issue since the court enjoined the Trump administration’s termination of DACA. Now, 800,000 dreamers wait anxiously for the Supreme Court to address the legality of the actions taken by the Trump administration when momentum had been building for a possible legislative fix before the courts got involved.
This pattern of increasing reliance on the judicial system to fix national immigration policy issues is not sustainable. The U.S. business community has a significant interest in this country’s ability to attract and retain the best and the brightest so we can remain competitive.
Global mobility solutions cannot rest on the whim of the judicial process. The issues often are not well-framed for judicial resolution and the process takes far too long. Also, there is a distinct potential for policy advocates to try and expand this injunctive remedy to other areas covered exclusively by federal law.
In this context, businesses should be more active advocates for long-term legislative cures — not just asking courts to treat the symptoms. Companies cannot continue to rely on the possibility of nationwide injunctions whenever the executive branch rolls out an immigration or other policy that runs counter to their economic interests.
Nor can the economy sustain an exodus of U.S. businesses to Canada or other countries that offer more predictable immigration policies to attract high-skilled global talent. U.S. business faces skills shortages and fierce competition for talent (over 2 million jobs in the STEM fields remain unfilled in the U.S.) and restrictive immigration measures that can’t be blocked in court will only create greater unpredictability for the U.S. economy.
The conversation over immigration needs to shift from border walls and travel bans to how the constructive use of immigration is essential for making America more competitive globally.
As Bob Dylan put it, “You don’t need a weatherman to know which way the wind blows.” The court has clearly forecast that injunctions may not be a viable option for much longer.
Businesses should consider getting behind immigration reform and lobbying Congress more vigorously to exercise its plenary power and enact immigration legislation.
Robert S. Groban, Jr., is a Partner and manages the New York office of Berry Appleman & Leiden LLP.
This article was originally published on Law360.com on Feb. 27, 2020.
Former President George W. Bush raised eyebrows last month during a speech at a naturalization ceremony, when he veered into politics and urged legislative reform of the immigration system.
“When the laws are outdated and ineffective, they must be rewritten,” he said. “I hope those responsible in Washington can dial down the rhetoric, put politics aside, and modernize our immigration laws soon.”
Now, Senate majority leader Mitch McConnell has called for bipartisan legislation to do just that. It’s “long past due” for Republicans and Democrats to work together to fix the immigration system, he told reporters before Congress took Easter recess. In response, House majority leader Nancy Pelosi said she was “pleased to see” McConnell’s willingness to talk immigration. In the coming days, the White House is expected to hear an immigration reform proposal prepared by Trump’s senior advisor and son-in-law Jared Kushner that will reportedly cover border security, a merit-based immigration system, temporary guest worker programs, and asylum laws.
In normal times, immigration reform would seem impossible in such a divisive environment, a political third-rail as campaigning for the 2020 election gets underway. But these are hardly normal times. Several conditions make the environment conducive to legislative action on immigration. First, immigration reform is long overdue—the last time Congress made major changes to the system was more than 20 years ago in 1996, and truly comprehensive immigration reform dates back to 1986. Second, the administration has been pushing its immigration agenda so heavily that it may be forced to make concessions and get Congressional buy-in if it wants to continue to pursue its aims. Third, the surge in Central American asylum seekers could be the catalyst for a broader immigration debate.
Will Congress defy conventional wisdom and tackle immigration reform? If so, which issues are likely to be addressed and will they include business immigration routes for high-skilled workers?
Republicans appear most interested in addressing reforms to asylum law to tamp down on asylum applicants at the southern border. The White House is looking to modify the Flores settlement agreement, which requires the government to release children held in detention after 20 days, and the Trafficking Victims Protection Reauthorization Act (TVPRA), which provides legal protections for unaccompanied minor children who enter the U.S. Democrats appear willing to deal on border issues but would want reinstatement of Deferred Action for Childhood Arrivals and Temporary Protected Status, two programs threatened with elimination and that remain in existence only because of intervention by the courts.
While it is unclear whether lawmakers will expand the negotiations beyond border issues and address legal immigration routes, including high-skilled workers, Republicans reintroduced the RAISE Act in both the House and Senate last week, a day before McConnell’s comments. The RAISE (Reforming American Immigration for a Strong Economy) Act would introduce a points-based system for employment-based visas that would pool applicants and rank them on the basis of education, English-language ability, age, salary level, and other achievements. U.S. Citizenship and Immigration Services would conduct draws twice a year and invite the candidates with the highest scores to apply for immigrant visas. The RAISE Act also proposes to slash family-based immigration, cap the number of refugees granted permanent residency at 50,000 per year, and abolish the annual Diversity Visa lottery program that allows 50,000 nationals of countries with low levels of immigration to the U.S. to apply for green cards. President Trump endorsed a similar version of the RAISE Act when it was first introduced in 2017.
Congress has failed to carry out comprehensive immigration reform for decades. Now, more than ever, businesses and individuals should engage with policymakers to help shape an immigration system that responds to today’s challenges.
Xavier Francis is an Associate Attorney in the Tysons, Virginia office of Berry Appleman & Leiden LLP.
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
All employers who send employees across international borders—whether to engage in business activities, carry out short-term assignments, or for long-term relocation—benefit from having a written immigration policy that covers the legal and practical issues of global travel and international relocation.
A written policy helps companies meet duty-of-care obligations, prevents border issues and detainments, and ensures that employees have the right to work when they arrive in their destination country. Additionally, a policy sets uniform expectations and guidelines to prevent managers and employees from running afoul of local labor laws or other sponsorship requirements. With a written immigration and business travel policy, employees benefit from having clear expectations from the offset and Global Mobility staff can reference uniform policies to inform their management of compliance requirements and other legal obligations.
This backgrounder by Berry Appleman & Leiden LLP (BAL) provides high-level suggestions on key issues related to mobility and immigration that should be part of every global company’s policy manual. With the backgrounder, BAL hopes to encourage Global Mobility professionals to think about how to create a best-in-class internal policy around immigration and international travel that promotes business needs while mitigating the many immigration risks that follow international travel assignments and long-term relocation. Topics covered in the document are described below in brief. For full explanations and key information, download the full BAL backgrounder here.
Around the world, governments, regardless of political persuasion, are stepping up compliance by more strictly enforcing their existing immigration laws. Increased fines, penalties, and criminalization of unauthorized working and expanded audit activities are more often focusing on companies—rather than workers—for illegal hiring, improper or invalid documentation, failure to complete mandatory procedures and other immigration infractions.
While immigration noncompliance can severely impact a multinational company’s reputation, until recently, fines and legal ramifications for noncompliance had not possessed much regulatory “bite.” Now, however, governments are revising regulations, scrutinizing work authorization for foreign nationals, and enforcing rules and regulations with new rigor to ensure that laws have “teeth.”
In this issue of the Global Trends Report, we take a closer look at immigration enforcement and how noncompliant employers face substantial financial and legal consequences.
Read the full report by completing the form below.
The Department of Homeland Security has published a proposed rule that would expand its ability to deny visas or green card applications on the basis of a “public charge” determination. Specifically, the regulation would broaden the types of public assistance that could render an individual inadmissible. The rule is currently open for notice and comment until Dec. 10. If adopted, the rule would have a widespread impact, subjecting more than 382,000 green card applicants and 517,000 extension or change-of-status applicants each year to a public charge determination, according to DHS estimates. The proposed rule would greatly expand the scope of the public charge determination, applying it to most visa and green card applications and giving adjudicators authority to consider an applicant’s prior use of public benefits as well as likelihood of future public benefit use.
The term “public charge” has never been defined in a formal regulation. However, a 1999 guidance defined it as someone who is “primarily dependent” on public benefits for more than half of his or her income, and instructed adjudicators to consider only cash benefits or institutionalized long-term care in deciding whether someone is a public charge. Non-cash benefits are currently not considered, but that might change soon. Under the proposed rule, adjudicators could consider various non-cash federal or state benefits—including Medicaid, the Medicare Part D low-income prescription drug subsidy, the Supplement Nutrition Assistance Program (SNAP, formerly called “food stamps”), Federal Rental Assistance (Section 8 housing choice voucher program, Section 8 project-based rental assistance, and subsidized public housing), and benefits for institutionalized long-term care—as “heavily weighted negative factors” against the applicant. In addition, the proposed rule would allow adjudicators to look back to evaluate whether the applicant used these benefits within the three years immediately preceding the application, essentially establishing a presumption that even able-bodied applicants are ineligible if they received public benefits in the past.
In addition to the look-back provision, the proposed rule also emphasizes the forward-looking aspect of the law: If an adjudicator decides that the applicant is likely at any time in the future to receive one or more public benefits, the applicant would be inadmissible as a public charge. The new rule would apply both to first-time applicants and renewals. Individuals seeking to renew, change or extend their status may find themselves suddenly denied on public charge grounds. Adjudicators would have the authority to request a new Form I-944, or “Declaration of Self-Sufficiency,” and accompanying evidence, which would add a layer of uncertainty to previously predictable processes. U.S. Citizenship and Immigration Services estimates that it would take an average of 4½ hours to complete the form, and applicants would be required to provide credit reports and scores from one of the three major credit bureaus.
The rule, if finalized in its current form, will cause ambiguity around processing requirements and time lines for employers and individuals applying under legal immigration routes. Even individuals who have been residing in the U.S. and maintaining status for years may suddenly find themselves subjected to additional scrutiny or denials. It should be noted that the rule’s expanded definition of “public charge” would only apply to individuals who directly receive public benefits (benefits received by their family dependents will not count), and that the types of public benefits added by this rule would only count against visa eligibility if they are received after the effective date of the rule.
Employers are encouraged to comment before the Dec. 10 deadline.
Immigration policies can help countries enhance or restrict the flow of foreign labor, depending on local needs. Rather than taking a one-size-fits-all approach, countries are finding creative ways to regulate immigration according to their individual economies and varying local labor demands across different industry sectors and geographical regions. The strategic use of these policies enables countries to encourage companies to hire local workers while continuing to attract foreign talent where needed. In this quarter’s Global Trends Report, BAL looks at this trend in greater detail and provides a country-by-country analysis that illustrates the wide variety of policy tools currently in use around the world.
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.