As We Head Into the Labor Day Holiday, More Changes to the U.S. Immigration System As We Head Into the Labor Day Holiday, More Changes to the U.S. Immigration System

As We Head Into the Labor Day Holiday, More Changes to the U.S. Immigration System

As we reflect on the power of the American workforce and the resolve of the American spirit this weekend, we are also reminded of the hard work and contributions immigrant labor make to that workforce every day. The U.S. Department of Labor reminds us that Labor Day is “dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.” While we celebrate this weekend, it’s important to note there is still a lot of work to be done to repair our broken immigration system. Illegal immigration continues to grab national and local headlines; however, there are a number of very important and concerning shifts occurring within the employment-based immigration system.
 
Advance Parole Denials

While issuing no formal statement ahead of an abrupt departure from long standing practice, USCIS has confirmed reports that it is denying pending advance parole applications on the basis of abandonment when the applicant departs the U.S. Denials of these pending applications are occurring even when the applicant has another lawful basis for returning to the U.S. (such as a valid H or L visa or a still valid, previously issued advance parole document). With the holiday season around the corner, advance parole applicants are strongly encouraged to seek counsel well in advance of international travel to ensure no disruption in travel plans.
 
Green Card Interviews

USCIS announced that it will conduct in-person interviews of all employment-based applicants for green cards beginning Oct. 1, 2017, which is consistent with President Trump’s highly controversial Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (see our prior article here). While such interviews are intended to contribute to “more robust screening and vetting procedures,” it is important to note that such in-person interviewing during the final phase of green card processing follows what is very likely years, and even decades, of lawful physical presence in the U.S. All visa applicants, of course, are vetted prior to and during initial and subsequent entries into the U.S. Employment-based green card sponsorship is typically initiated by U.S. employers on behalf of highly skilled foreign talent after one or more years of employment here. Once initiated, the green card process routinely takes at least two (2) years and very often more than ten (10) years, depending on the applicant’s country of birth. Existing USCIS policy permits interviewing of employment-based applicants on an as needed basis. Requiring an in-person interview of all employment-based green card applicants will very likely contribute to the already extensive processing and quota-related delays and backlogs.
 
RFE’s on H-1B petitions

As predicted, USCIS is issuing Requests for Evidence on new and other H-1B petitions for specialty occupations. This is likely triggered by President Trump’s “Buy American and Hire American” Executive Order, which directs agencies to suggest reforms to ensure H-1B visas are awarded to the most-skilled and highest-paid beneficiaries. Pursuant to this Order, USCIS reported it is working on a combination of rulemaking, policy memoranda, and operational changes to implement the Order. (See our previous article on “Hire American” here.) Specifically at issue with these RFE’s is whether positions qualify as specialty occupations even if the position is compensated at an entry level. Petitions filed on behalf of H-1B workers are approvable even for entry level occupations, particularly those for which extensive education and experience is the minimum requirement for entry into the occupation. Specialty occupations are defined in statute and regulations as positions that require “theoretical and practical application of a body of highly specialized knowledge” and a minimum of baccalaureate level education (or its equivalent) in a relevant discipline. Despite the administration’s stated objectives, there is no basis in existing statute or regulation to suggest that entry level positions do not qualify for H-1B classification.
 
The End of DACA?

There has been a noticeable uptick in rumors related to President Trump’s intention to terminate the program known as DACA (Deferred Action for Childhood Arrivals) and an announcement from the President is likely imminent. Unlike other aspects of U.S. immigration law and policy, President Trump has the authority to formally end the DACA program without Congress or formal rulemaking procedures. As it was constructed by administrative procedure through Executive Action by President Obama, it can be terminated unilaterally by the executive branch. The DACA program has been in place since June 2012 and permits certain qualifying applicants to apply for formal DACA designation, shielding approved applicants from removal from the U.S. and providing employment authorization benefits if they meet certain eligibility criteria, including entry to the U.S. before the age of sixteen (16).
 
Attorneys General from nineteen (19) states and Washington D.C. have urged President Trump to retain the program. Their letter follows a letter from eleven (11) states requesting DACA be phased out. The latter group has set a deadline of Sept. 5, 2017, for President Trump to phase out DACA or these states intend to amend their existing litigation on DACA expansion to include the existing program as well. Adding to the mix, House Speaker Paul Ryan is now urging President Trump to give Congress an opportunity to fix the program. If President Trump calls for an end or phasing out of the DACA program, it will be important to note those specifics before taking any adverse action against potentially affected employees. Employees with valid employment authorization cards, including those based on DACA, remain employment authorized for the duration of their cards (unless or until formal notice of revocation).
 
New Form I-9

Effective Sept. 18, 2017, employers must use the recently revised version of the Form I-9 (showing revision date 7/17/17). The new form includes the addition of a new List C document (Consular Report of Birth Abroad, Form FS-240) and reflects other minor clerical changes. The latest version of the Form I-9 can be found here.
 
As we enjoy the unofficial end of summer with family and friends, we should also remember and consider the invaluable contributions of the American workforce, including our immigrant neighbors. Happy Labor Day!
 
If you have questions related to U.S. immigration or global migration, please contact Jenifer M. Brown, Christl Glier or another member of our Immigration Practice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
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