USCIS Changes its Mission Statement To No Longer Include “Nation of Immigrants”

USCIS made a change in their Mission Statement, removing a passage that describes the United States as a nation of immigrants, instead their new mission statement emphasizes “safeguarding its integrity” and “securing the homeland.” The new Mission Statement is as follows:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

Federal Appeals Court Grants Abeyance in H-4 EAD Lawsuit, but Program Still in Jeopardy as DHS Will Publish Rule to Eliminate the Program in June 2018

On February 22, 2018, the U.S. Court of Appeals for the District of Columbia Circuit granted the Trump Administration’s motion to hold the lawsuit challenging the legality of the H-4 EAD program in abeyance for 90 days. This means the lawsuit will remain suspended for the next 90 days, at which point the Administration must provide the court with a status update. The purpose of the abeyance is to allow the Trump Administration more time to issue new regulations that will eliminate the H-4 EAD program, and thus make the pending lawsuit moot.

On February 28, 2018, DHS submitted a status report in the case, which is still being held in abeyance. The status report indicated that DHS intends to publish a Notice of Proposed Rulemaking to remove the H-4 EAD program by June 2018.

USCIS Issues Policy Memo on H-1B Placement at Third Party Worksite

On February 22, 2018, with immediate effect, USCIS released a new policy memorandum which requires that all employers filing H-1B petitions on behalf of employees, who will work at a third-party location or multiple locations, must provide the following:

  • Contracts, specific itineraries, and detailed information from end-clients covering the entire period of employment, otherwise the validity period may be limited to the submitted documentation.
  • Reiterates that the petitioning company must demonstrate that it will maintain an employer-employee relationship with the employee during the time requested in H-1B status.

The USCIS will scrutinize contractual relationships among H-1B petitioners, subcontractors and end-clients to assess whether petitioners will retain the right to control H-1B employees throughout the period of employment. The new guidelines will apply to FY 2019 H-1B cap petitions, as well as H-1B extension of stay requests.

This policy memo is aimed in particular at IT outsourcing companies who, the USCIS believes, may abuse prevailing wage and other requirements of the Labor Condition Application (LCA) and therefore undercut U.S. wages or employment opportunities of U.S. workers. Unfortunately, the memo is likely to lead to additional Requests for Evidence, even for non-IT outsourcing employers who may assign H-1B employees to client or customer sites and who have filed and complied with LCA requirements for all locations.

This memorandum is issued to comply with the Presidential Executive Order of “Buy American, Hire American”.

USCIS Completes Random Selection Process for H-2B Visa Cap for Second Half of FY2018

On February 21, 2018, USCIS began receiving H-2B cap-subject petitions for the second half of FY2018. USCIS received approximately 2,700 petitions requesting approximately 47,000 workers. On February 28, 2018, USCIS conducted a lottery to randomly select enough petitions to meet the cap. USCIS will reject and return the petitions and associated filing fees to petitioners that were not selected, as well as any cap-subject petitions received after February 27.

USCIS will continue to accept H-2B petitions that are exempt from, or not counted towards, the cap. This includes petitions for the following workers:

  • Current H-2B workers in the United States seeking to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam, until December 31, 2019.

H-2B petitioners may continue to request premium processing together with their H-2B petition. However, please note that because the final receipt date was one of the first five business days of the filing season, petitions accepted in the lottery will be given a receipt date of March 1, 2018. Premium processing service for these petitions began on that receipt date.

DACA Renewal Applications Can Continue to be Filed in the Wake of the January 9, 2018 Federal Court Ruling

On February 26, 2018, the Supreme Court denied certiorari in DHS v. Regents of the University of California, noting that it “assumed that the Court of Appeals will proceed expeditiously to decide this case.” This decision means that the DACA program will not be terminated on the Administration’s target date of March 5, 2018. USCIS will continue to accept and process renewal applications under the guidelines specified below while the litigation works through the regular appellate review process. They however, will not accept applications from foreign nationals who have not previously received DACA benefits.

Supreme Court Holds That INA §§235(b), 236(a), and 236(c) Do Not Entitle Noncitizens in Prolonged Immigration Detention to Bond Hearings

The Supreme Court reversed the judgment of the Ninth Circuit Court of Appeals and remanded, holding that INA §§235(b), 236(a), and 236(c) do not give detained non-citizens the right to periodic bond hearings during the course of their detention. The Court directed the Ninth Circuit to consider on remand the respondents’ constitutional arguments, which the Ninth Circuit did not previously consider. (Jennings v. Rodriguez, 2/27/18).