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Changes to U.S. Immigration Continue

Whether encountering these issues in connection with re-verification of immigration documents as a part of I-9 compliance obligations or through direct sponsorship of key foreign national employees, the following are some of the changes employers need to consider from the last several days.
 
Good and Bad News on TPS
The Department of Homeland Security (DHS) determined that the country-specific conditions for El Salvador, Haiti, Nicaragua, and Sudan that gave rise to Temporary Protected Status (TPS) for these countries no longer exist. While the very nature of TPS is temporary, such designations have routinely been extended, leading to decades of lawful presence in the U.S. for many TPS recipients. TPS is now being terminated for these countries according to the following timeframes:
 
  • El Salvador: Sept. 9, 2019 (designated in 2001)
  • Haiti: July 22, 2019 (designated in 2010)
  • Nicaragua: Jan. 5, 2019 (designated in 1999)
  • Sudan: Nov. 2, 2018 (designated in 1997)
In a significant departure from past policy and in response to the Trump administration’s announcement ending many TPS programs, the Sixth and Ninth Circuit Courts of Appeal have both ruled that an award of TPS counts as a lawful admission for the purposes of adjusting status to permanent residence (green card status). This paves the way for some TPS holders to pursue green card status prior to the termination of their TPS program. For these individuals to file an adjustment application, the following criteria must be met:
 
  • Entry into the United States without inspection prior to receipt of TPS;
  • Currently present in the U.S. in valid TPS status;
  • Otherwise eligible for adjustment of status meaning:
    • An immigrant visa number must be immediately available;
    • He or she is not inadmissible; and
    • None of the statutory or regulatory bars to adjustment apply; and
  • Resident of a state within the jurisdiction of the Sixth or Ninth Circuit Court of Appeals (Kentucky, Tennessee, Ohio, Michigan, Alaska, Washington, Idaho, Montana, Oregon, California, Nevada, Arizona, Hawaii, Northern Mariana Islands, and Guam). Moving to a state within one of these Circuits is acceptable. 
Practically speaking, the individuals with TPS status who will most likely benefit from these rulings are immediate relatives of U.S. citizens, as well as some that may qualify for an employment-based visa category. Other applicants are likely prohibited from adjusting status as part of a statutory bar stemming from their unlawful entry into the U.S.
 
Additionally, because the Sixth and Ninth Circuits ruled that a grant of TPS status counts as a lawful admission, the reasoning of both decisions should apply equally to a TPS recipient who initially entered without inspection and now seeks to change status from TPS to a temporary nonimmigrant visa status.
 
DACA
In response to a nationwide preliminary injunction issued by a district court judge in the Ninth Circuit, USCIS is once again accepting DACA renewal applications from those who were precluded from doing so following President Trump’s Executive Order rescinding the program last fall. In the meantime, the executive and legislative branches continue to contemplate a permanent solution for DACA beneficiaries (commonly referred to as “dreamers”) as part of the federal spending bill and amongst other immigration priorities on family-sponsored immigration, the diversity lottery program, and enhanced border security.
 
Worksite Enforcement
Through its words and deeds, the Trump administration has confirmed its ongoing intentions to aggressively pursue employers for IRCA-related violations, specifically obligations related to compliance with the Form I-9 employment verification process. Employers are strongly encouraged to bring their employment verification procedures into full compliance as soon as possible.
 
Possible Regulatory Change to H-1B Extensions
USCIS has now announced it is NOT considering a regulatory change to H-1B extensions. See our prior article on this topic here. However, USCIS has noted its intention to continue to review all employment-based visa programs and is considering a number of policy and regulatory changes consistent with the President’s Buy American, Hire American Executive Order.

Please contact Jenifer M. Brown, Christl Glier or Kristin Kelley with questions related to U.S. immigration matters.

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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