Congress to Debate New Short Term Bill to Fund Government Past February 8, 2018

On January 22, 2018, Congress ended a 3 day government shutdown by agreeing to pass a short term budget bill to fund the government through February 8, 2018. This week, Congress will debate a new budget bill to continue funding the government past that date. Possible roadblocks to passing a new bill include disagreements between Republicans and Democrats on defense spending, domestic spending, and proposing a resolution to address the end of the Deferred Action for Childhood Arrivals (DACA) program, which affects undocumented immigrants who were brought into the US as children.

Should Congress fail to agree upon a new budget, the US government will once again shutdown on February 8, 2018. Like the government shutdown last month, a potential subsequent shutdown will affect the following immigration services:

  • USCIS will continue to operate as usual as it is funded by user/application fees (as opposed to government funding). However, there will likely be delays in overall processing.
  • All US Department of Labor (DOL) functions, as well as access to any online DOL portals, will be suspended. This means that there will be no filings or adjudications of any Labor Condition Applications (LCAs), Prevailing Wage Determinations (PWDs) and PERMs (ETA 9089 Permanent Labor Certification). The DOL will issue pending certifications after it resumes operations.
  • US consulates abroad will continue to process visa applications, but applicants should be prepared for significant delays.
  • Customs and Border Patrol (CBP) may or may not process TN or L-1 applications, this will depend on the instructions they receive from the federal government.

In the case of a new government shutdown, even if the budget impasse is resolved, one should anticipate delays as government agencies work through the backlog that will likely accrue due to the shutdown.

USCIS SCOPS Confirms No Procedural Changes for H-1B FY2019 Cap Season; Possible Premium Processing Suspension for Cap Subject Cases ONLY

On January 25, 2018, USCIS Service Center Operations Directorate (SCOPS) confirmed that USCIS does not plan to implement any procedural changes for this year’s (FY 2019) H-1B cap season. The Service intends to follow the same procedures that were used for last year’s H-1B cap season. As such, there would likely be no pre-registration system for employers filing cap-subject H-1Bs, which USCIS has considered implementing. Further, unlike last year, USCIS does not anticipate a suspension of premium processing for cap-exempt H-1B petitions (e.g., extensions, transfers, amendments, non-profit, etc.) However, USCIS did indicate that it may suspend premium processing for a short period for H-1B cap-subject petitions.

H-4 EAD in Jeopardy

Since May 26, 2015, certain H-4 dependent spouses have been eligible to obtain employment authorization. In April 2015, soon after the rule was enacted, but before it took effect, an organization called Save Jobs USA filed a lawsuit against the Department of Homeland Security (DHS) claiming that the new provision harmed US workers. The case was initially dismissed, but while on Appeal and after the Trump Administration took office, the case gained some momentum culminating in DHS reconsidering its position. On December 14, 2017, DHS published an agenda item called “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” confirming it is reviewing and proposing to revoke the 2015 H-4 EAD rule in light of President Trump’s Buy American and Hire American Executive Order.

It is anticipated that the proposed H-4 revocation rule will be published sometime in February 2018. As of today, however, DHS has not published the rule, nor has DHS provided any indication of how the rule will affect those who hold H-4 employment authorization. Based on what we have seen in the past, we expect that existing H-4 EADs may remain valid until the end of their expiration date, but this remains unconfirmed.

Currently, the 2015 H-4 EAD rule remains in effect. Eligible applicants are encouraged to continue to file for initial or renewal benefits under the current rule. We also recommend H-4 EAD holders to contact your Greenspoon Marder immigration attorney to discuss possible alternatives.

We will continue to monitor the status of the H-4 EAD revocation and will advise you immediately of any developments.

Republican Senators Propose New Legislation to Reform and Expand the H-1B Program

On January 25, 2018, Republican Senators Orrin Hatch (Utah) and Jeff Flake (Arizona) introduced new legislation to reform and expand the H-1B visa program. This legislation comes at a time when the current administration has proposed methods to curtail the H-1B program in an effort to protect US workers.

The Immigration Innovation Act of 2018, or “I-Squared,” proposes to increase the annual H-1B visa allotment cap from 65,000 to 85,000 as well as provide work authorization for H-1B holder’s spouses and children. At the same time, I-Squared will prohibit employers from using an H-1B visa with the intent to substitute or replace a US worker. Another key provision of the bill includes the removal of per country limits for employer sponsored green cards. Currently, due to per country limits, Indian and Chinese nationals, a substantial percentage of H-1B visa holders, must wait several years to receive an employment based green card.

Senator Hatch had introduced a previous iteration of this legislation several years ago under the Immigration Innovation Act of 2015.

White House Framework on Immigration Reform: The Deal in Exchange for DACA Relief

In September 2017, the Trump Administration announced that it would end the DACA (Deferred Action for Childhood Arrivals) program, giving Congress until March 2018 to solve the status of DACA recipients (knowns as “Dreamers”). These Dreamers, immigrants who were brought to the US illegally as children, were given temporary work authorization under President Obama’s executive order in June 2012. On January 25, 2018, in the midst of negotiations in Congress, President Trump released a proposal requesting specific concessions in exchange for approving DACA relief as detailed in the “White House Framework on Immigration Reform & Border Security.”

The White House has indicated that it would provide certain DACA recipients a potential path to legalize their status, but only if Congress provides certain broad sweeping concessions restricting immigration to the US. The White House Framework is summarized into four points:

  1. Border Security and expanded enforcement powers: The Trump Administration is seeking $25 billion to fund border infrastructure, which would include the border wall with Mexico, as well as expanded powers to remove unauthorized foreign nationals.
  2. Limit family-based immigration: Under the heading “Protect the Nuclear Family”, this demand seeks to limit family sponsorship to only spouses and minor children of US Citizens and Lawful Permanent Residents. This would eliminate benefits for children 21 years of age and over of US citizens and LPRs, as well as for parents and siblings of US citizens.
  3. End the Diversity Immigration Lottery: The proposal is to eliminate the immigrant diversity visa lottery program in its entirety and reallocate the visas to reduce the family-based backlog and high-skilled employment backlog.
  4. DACA Relief: In exchange for the three points discussed above, the White House would allow DACA recipients and other DACA-eligible illegal immigrants to obtain legal status and a potential path to US citizenship. To qualify, the applicants need to comply with work, education and good moral character requirements, and their status is subject to revocation for “criminal conduct or public safety and national security concerns, public charge, fraud, etc.”

Democrats, immigration advocates and some Republicans immediately rejected the White House Framework. Republican and Democratic senators are currently working on drafting a narrower plan with hopes of gaining strong bipartisan support.

We will continue to monitor and report on any legislative developments in this Immigration Reform.

Status on TPS Terminations

As background, the US Department of Homeland Security (DHS) designates and determines the continuing eligibility of Temporary Protected Status (TPS) for nationals of eligible countries. TPS is granted to nationals of foreign countries where conditions prevent them from returning safely, or where the country is unable to handle the return of its nationals adequately. DHS decides whether to terminate or extend TPS for a country at least 60 days before it is set to expire. If a determination is not made, the TPS status is automatically extended for six months. If terminated, DHS may decide to delay the termination of TPS status to allow TPS holders to arrange for departure or to seek an alternative lawful immigration status in the US.

In an effort to tighten restrictions on immigration, the Trump Administration has announced its intention to construe the need for TPS status more narrowly. In this regard, to date, we have seen the DHS formally terminate TPS status for Sudan, Haiti, Nicaragua, and El Salvador. Although DHS has extended TPS status for Honduras for an additional six months through July 5, 2018, it is uncertain whether DHS will extend their status again. Five other countries (Nepal, Somali, South Sedan, Syria and Yemen) currently still have TPS, but it is unclear whether the Trump Administration plans to end their protections. To see the respective termination dates and re-registration periods for eligible TPS holders, and possible automatic EAD extensions, please see:

USCIS to Focus on Processing Recently Filed Asylum Applications to Address Asylum Backlog

On January 31, 2018, USCIS announced that it will begin scheduling asylum interviews for recently filed applications ahead of older filings in an attempt to stem the growth of the Service’s asylum backlog.

Over the past five years, the rate of new asylum applications has more than tripled resulting in a backlog that has grown by more than 1750% during the same period. As of January 21, 2018, USCIS faces a “crisis-level backlog” of 311,000 pending asylum cases. According to the Service, such a backlog creates a higher potential for fraud and abuse.

To address this problem, USCIS will now prioritize scheduling affirmative asylum interviews as follows:

  1. Applications that were rescheduled for an interview at the applicant’s request or by USCIS;
  2. Applications pending 21 days or less since filing; and
  3. All other pending applications, starting with newer filings and working back toward older filings.

USCIS will also discontinue publishing the Affirmative Asylum Bulletin.

The Service had previously utilized this priority scheduling approach from 1995 through 2014 as a means to deter those who would use the backlog as a means to obtain employment authorization. USCIS believes that a return to this “last in, first out” interview schedule approach will allow it to better identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings.