Today, January 8, 2018, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced her determination that termination of the Temporary Protected Status (TPS) designation for El Salvador was required pursuant to the Immigration and Nationality Act.  To allow for an orderly transition, she has determined to delay the termination for 18 months, which means the designation will terminate on Sept. 9, 2019.

According to the notification published today, the Department of Homeland Security (DHS) states that the decision to terminate TPS for El Salvador was made after a review of the disaster-related conditions upon which the country’s original designation was based and an assessment of whether those originating conditions continue to exist as required by statute.  The notice explains that the Secretary determined that the original conditions caused by the 2001 earthquakes no longer exist and, therefore, under the applicable statute, the current TPS designation must be terminated.

The Department of Homeland Security conducted extensive outreach to Salvadoran communities throughout the country and made its decision based upon careful consideration of available information, including recommendations received as part of an inter-agency consultation process.  This includes, but is not limited to, community forums on TPS, panel discussions with Salvadoran community organizers, stakeholder teleconferences, regular meetings with TPS beneficiaries, news releases to the Salvadoran community, meetings with Salvadoran government officials, meetings at local churches, and listening sessions.  The Secretary met recently with the El Salvadorian Foreign Minister and Ambassador to the United States, and spoke with President Sánchez Cerén.

Following the 2001 earthquake, Salvadorians were granted Temporary Protected Status (TPS), which has been renewed every 18 months since then.  According to the DHS, many reconstruction projects in El Salvador have now been completed, including the rebuilding or repair of schools, hospitals and homes damaged by the earthquakes, and money has been provided for water and sanitation and to repair earthquake damaged roads and other infrastructure such that that substantial disruption of living conditions caused by the earthquake no longer exist. The DHS statement also noted that the U.S. government has deported more than 39,000 Salvadorans in the past two years, demonstrating, it said, “that the temporary inability of El Salvador to adequately return their nationals after the earthquake has been addressed.”

To allow for an orderly transition, the effective date of the termination of TPS for El Salvador will be delayed 18 months (until September 19, 2019) to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible.

Estimates differ for exactly how many immigrants the decision will affect. DHS officials said 262,500 Salvadorans have been granted TPS permits, but activists and experts have put the number of Salvadorans who could lose protections closer to 200,000, noting that official statistics likely include people who are no longer in the program because their immigration status has changed or they have left the United States. Immigrant advocates, Salvadoran government officials and many others had implored Nielsen to extend the TPS designation, citing the country’s horrific gang violence and the potentially destabilizing effect of so many people being sent home. Others urged her to consider the approximately 190,000 U.S.-born children of Salvadoran TPS recipients. Their parents must now decide whether to break up their families, take their entire families back to El Salvador, or stay in the United States and risk deportation.

Senior DHS officials told reporters Monday that the families would have to make that decision, and that the effect on American businesses, among other potential consequences of the TPS decision, were not part of Nielsen’s decision-making process. DHS state that it is up to Congress to determine a remedy.  “Only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years,” the DHS statement read. “The 18-month delayed termination will allow Congress time to craft a potential legislative solution.”

Trump administration officials have repeatedly said they considered the TPS program an example of American immigration policy gone awry, noting that when Congress created the designation in 1990, its purpose was to provide “temporary” protection from deportation following a natural disaster, armed conflict or other calamity.

Salvadorans with TPS will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the United States until the termination of El Salvador’s TPS designation becomes effective on Sept. 9, 2019.  The re-registration period is announced through a Federal Register notice.


Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The American Competitiveness in the Twenty First Century Act of 2000 (AC21) has provisions that extend H-1B visas beyond the 6-year limit for those in the process of becoming US lawful permanent residents.  AC21’s Section 106(a) allows H-1B extensions in 1-year increments beyond the 6-year limit if a labor certification, immigrant visa petition (I-140) or employment-based adjustment of status (I-485) application was filed more than 365 days prior to the expiration of the H-1B status. Section 104(c) of the statute allows 3-year extensions for those whose I-140 has been approved and whose priority date precludes the filing of an adjustment of status application.

 Yesterday, January 3, the Times of India ran an article entitled:  “Trump administration considers proposal that may send back more than 500,000 Indian tech workers.” The article cites rumors that the Department of Homeland Security (DHS)  is considering a change in its interpretation of Section 104(c).  AC21 Section 104(c) is being used by employers of hundreds of thousands of Indian tech workers, as well as of other nonimmigrant workers caught in the priority date backlog, to extend their lawful stay so that they may continue to work  in the US while they wait to file the final set of paperwork in their green card applications.  Without the ability to extend their H-1B visas, many could be required to leave…preventing that is the reason Congress passed AC21 into law. Yet, the rumors reported in the Times of India and other news outlets are that the current administration is looking to reinterpret language in Section 104(c) which uses the words “may grant” rather than “shall grant” in order to discontinue the H-1B extensions in support of President Trump’s “Buy American, Hire American” initiative. 

 The reported rumors have caused a huge stir.  Interpretations of AC21, some of which predate USCIS’ existence, have not been codified by regulation, but can’t change by rumor.  The interpretation can be formalized, so this is an issue to watch closely.  There haven’t been any official government pronouncements that 500,000 Indian tech workers are being sent back home.  One has to wonder how doing so would enhance the competitiveness of American employers in the 21st century. 

 

CU.S. Capitol Building, Washington, D.C.ongress has passed a stopgap spending bill which will extend the EB-5 Regional Center Program through January 19, 2018 without change.  It is expected President Trump will sign the bill today, thereby averting a government shutdown. Without the stopgap spending bill, the EB-5 Program was otherwise due to expire tonight. We will be closely following activity on Capitol Hill as efforts towards EB-5 reform continue.

U.S. Capitol Building, Washington, D.C.The EB-5 Program has been extended through December 22, 2017.  The Program was extended as part of a continuing resolution (CR) funding the federal government through December 22, 2017, thus preventing a government shutdown.

There are no changes to any federal programs with this two-week extension which is welcome news for EB-5 industry stakeholders.

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

Asplundh Tree Expert Co., one of the largest privately owned corporations in the country, with 30,000 employees and 3.5 billion in annual sales, according to Forbes, has been ordered to pay $95 million in the largest fine against a company for hiring thousands of immigrants who did not have permission to work in the U.S., according to federal officials. Asplundh, a 90-year-old, family-owned company that employs 30,000 workers in the U.S., Canada, Australia, and New Zealand, clears brush and vegetation from electric and gas lines and holds many municipal, state, and federal contacts.

According to the U.S. attorney’s office in Philadelphia, Asplundh employed thousands of undocumented workers between the years of 2010 and 2014 with its top management remaining “willfully blind” while lower level managers hired and rehired employees they knew to be ineligible to work in the United States,” the office said. In addition to having to forfeit $80 million, Asplundh will pay a $15 million civil penalty for not complying with immigration law. Asplundh employed thousands of undocumented workers between 2010 and 2014 with its top management remaining “willfully blind” while lower-level supervisors hired people they knew were in the country illegally to maximize profit.

Homeland Security Investigations began auditing Asplundh Tree Experts on Nov. 19, 2009 to make sure the company complied with federal laws regarding the hiring of immigrants. After being given a list of names, Asplundh fired hundreds of its employees who were ineligible to work in the U.S. Others quit before they could be terminated. After acting like it was complying with HSI demands, Asplundh instead doubled down on its illegal practices, according to federal authorities. Many of the some employees Asplundh had just let go were re-hired under different names using fake or illegally obtained documents. One of its regional managers, Larry Gauger, even went so far as to tell supervisors who worked under him that they had “plausible deniability” because their illegally obtained social security numbers would be positive matches in the E-verify database, court papers state. Gauger has pleaded guilty and is scheduled to be sentenced next month.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit,” prosecutors said in a statement. “With a motivated workforce, including unauthorized aliens willing to be relocated and respond to weather-related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market.”

ICE issued a statement on 9/28/2017, “Today marks the end of a lengthy investigation by ICE Homeland Security Investigations into hiring violations committed by the highest levels of Asplundh’s organization,” said ICE Acting Director Thomas Homan. “Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”

In a statement on its website, Asplundh said company officials “accept responsibility for the charges as outlined, and we apologize to our customers, associates and all other stakeholders for what has occurred.” Asplundh went on to say that is reviewing the identification of every employee and is adding a photo ID card system which includes the same facial recognition software used by ICE. The company is also adding a compliance specialist trained in ID examination in each region it does business.

Employers should remain alert and vigilant in their I-9 compliance practices. The Asplundh investigation is a lesson in compliance, demonstrating that liability exists not only in the evidence apparent in the paperwork, but also in an employer’s procedures, policies, and practices. An ICE investigation can be triggered from any number of sources, from an enforcement initiative within Homeland Security Investigations to a tip from an individual to the exchange of data between government agencies (SSA, IRS, DOL, etc.). An ICE investigation can result in more than just financial losses due to monetary penalties. These types of investigations, which can often carry on for years, result in the loss of workers and damage to company reputations and image, affecting relationships with customers and the public in general. Our recommendation on best practices is for employers to be prepared by performing private internal audits before ICE comes knocking.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting premium processing requests for all categories of H-1B petitions.  In March 2017, USCIS had suspended the premium processing program for H-1B petitions, citing the need to reduce its overwhelming processing backlog. Over the past several months, USCIS phased in premium processing for certain limited categories of H-1B petitions.  USCIS’s latest announcement allows employers to file any type of H-1B petition, including those seeking extension of stay or change of status, under Premium Processing and also allows employers to convert any such pending petitions to premium processing.

Under USCIS’ premium processing service, petitions are adjudicated within a 15 day calendar days for an additional government filing fee of $1,225 instead of the current regular processing time of 4-5 months.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On May 1, 2017, the U.S. Citizenship and Immigration Services began issuing redesigned versions of the Permanent Resident Card (aka a “Green Card”) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project.

The redesigned cards use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

USCIS states that the new card designs are part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and f raud and demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud.

The new Permanent Resident and EAD Cards will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Have embedded holographic images; and
  • No longer display the individual’s signature.
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Permanent Resident Cards will have an image of the Statue of Liberty and a predominately green palette;
  • Permanent Resident Cards will no longer have an optical stripe on the back.

Some Permanent Resident Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Permanent Resident Cards and EADs will remain valid until the expiration date shown on the card. Additionally, older Permanent Resident Cards without an expiration date also remain valid. USCIS continues to encourage individuals who have Permanent Resident Cards without an expiration date to consider applying for a replacement card bearing an expiration date in order to reduce the likelihood of fraud or tampering if the card is ever lost or stolen, but have not mandated that they must do so.

The M-274 Handbook for Employers for Completing Form I-9 (Employment Eligibility Verification Form) was updated in July 2017 to depict the design of the new cards and those several still valid versions.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The US Citizenship and Immigration Service (USCIS) announced today, September 18, 2017, that it will again expand its resumption of premium processing for additional types of H-1B petitions.

Effective immediately, H-1B petitions subject to the Fiscal Year 2018 cap are eligible for premium processing.  This includes petitions under the 65,000 cap and the 20,000 additional petitions for beneficiaries with a US master’s or higher degree.  Readers may recall that the FY 2018 cap was reached in April 2017.  Those pending filings that were selected in the H-1B lottery, which generally have October 1, 2017 start dates, are the ones that are included under this expanded resumption of premium processing.  This is indeed welcome news for both the petitioning employers and beneficiaries who may now achieve decisions that could allow the H-1B employment to begin on or shortly after the anticipated start date.

Today’s expansion of premium processing is in addition to two prior resumptions of premium processing which included:

  • H-1B petitioners who are exempt from the H-1B cap as:
    • An institution of higher education,
    • A nonprofit related to or affiliated with an institution of higher education, or
    • A nonprofit research or governmental research organization.
  • H-1B  petitions that are exempt because the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.
  • H-1B petitions for physicians under the Conrad 30 or an IGA (interested government agency) waiver program, and

For now, USCIS continues its temporary suspension of premium processing for all other H-1B petitions including but not limited to extensions of stay.

The Agency stated that it will continue to expand eligibility for premium processing for other types of H‑1B petitions as workloads permit.  You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  This may yet be achieved.

In its announcement USCIS included a reminder that H-1B petitioners may request expedited processing based on specific criteria such as humanitarian need.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.

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Catherine Wadhwani is a partner in the immigration practice at Fox Rothschild LLP.

On September 5, 2017, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) officially rescinded the program known as Deferred Action for Childhood Arrivals (DACA) and implemented a six month phase out process. Pursuant to its official memorandum and FAQ, USCIS will allow current DACA recipients to keep their work authorization and deferred action status/benefits until they expire and take the following steps to end the DACA program:

  • Initial DACA Applications: USCIS will continue to adjudicate properly filed initial DACA requests and associated applications for work authorization that were accepted by USCIS as of September 5, 2017. However, USCIS will reject any initial DACA requests received after September 5, 2017.
  • Renewal DACA Applications: USCIS will continue to adjudicate renewal DACA applications and associated applications for work authorization that have been accepted by USCIS as of September 5, 2017. USCIS will also continue to accept renewal applications filed by DACA recipients whose benefits expire on or before March 5, 2018, until October 5, 2017. After October 5, 2017, USCIS will reject all DACA renewal requests.
  • Pending Applications for Advance Parole Based on DACA: Effective September 5, 2017, USCIS will no longer process or approve any DACA-based applications for Advance Parole (Forms I-131). Any pending applications for advance parole will be closed, and USCIS will return the filing fees to the applicant. Although DHS also stated that it will generally honor the validity period for previously approved applications for advance parole, the FAQs note that CBP retains the right to refuse admission to a person who presents themselves at a port of entry as a matter of discretion.
  • Current EADs that Are Lost, Stolen, or Destroyed: The DHS FAQs state that individuals can still apply to replace a valid EAD that has been lost, stolen, or destroyed.
  • Current Valid DACA EADs: Any individual with a currently valid DACA EAD can continue to work lawfully. DHS confirmed that it would not terminate or revoke previous approved DACA or EAD solely based on its decision to rescind the DACA program. However, if the applicant’s DACA status and EAD expires after March 5, 2018, they are not eligible for renewal.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.