President Trump’s Executive Orders
Throughout his campaign, and now as President, Donald Trump has indicated that his immigration reform efforts will focus mainly on illegal immigration, as well as tighter immigration screening. Some of the proposals discussed so far could impact employers, as they include potentially increasing worksite enforcement and raids, changes to the H-1B visa, suspension of visa issuance where adequate screening cannot occur, implementation of biometric entry/exit visa tracking systems at all ports of entry, and termination of the DACA employment authorization program. Three Executive Orders issued last week provide further insights into the Trump Administration’s immigration reform priorities.
- Border Security and Immigration Enforcement Improvements
President Trump’s January 25th Executive Order addresses border security and enforcement in light of an alleged recent surge of illegal immigration through the southern border with Mexico. The Order announces the policy of the executive branch to a) secure the southern border by constructing a physical wall; b) detain individuals suspected of violating U.S. law; c) expedite the determination of claims to remain in the U.S.; d) promptly remove those individuals whose claim to remain is lawfully rejected; and d) enact federal-state partnerships to enforce Federal immigration priorities.
In furtherance of the policies outlined, the Order requires the Secretary of the Department of Homeland Security to take immediate steps to plan, design, develop long-term funding for, and construct a physical wall along the Mexican border. Among other specifics, it directs the Secretary to allocate resources to immediately assign asylum officers to detention facilities to review asylum applications and conduct credible fear determinations, as well as issue new policy regarding the appropriate use of detention authority, including the termination of the practice known as “catch and release.” The Attorney General is to make all resources available for the assigning of immigration judges to detention centers and to establish prosecution guidelines. The Order also mandates that an additional 5,000 Border Patrol agents be hired as soon as possible. In addition, it requires that the Secretary take appropriate steps to authorize state and local law enforcement to perform the functions of immigration officers, including investigation, apprehension and detention.
The Secretary and Attorney General are to submit reports on their progress on the directives within 90 and 180 days, respectively.
- Enhancing Public Safety in the Interior of the United States
This Executive Order was also issued on January 25th and addresses security and public safety within the United States. It announces policies regarding people that enter the United States illegally and those who overstay or otherwise violate the terms of their visa. The Order focuses on “sanctuary jurisdictions” in the United States and aims to ensure such jurisdictions that “willfully violate Federal law in an attempt to shield aliens from removal from the United States” do not receive federal funds, except as mandated by law. Citing a significant threat to national security and public safety, the Order requires that the Secretary of the Department of Homeland Security prioritize removal of those convicted of a criminal offense, those charged with a criminal offence where the charge is unresolved, those that have committed acts that constitute a criminal offense, those that have engaged in fraud or willful misrepresentation with an official matter or application to a government agency, those that have abused public benefits programs, those subject to a final order of removal that have not complied with their obligation to depart the United States, and those who, in the judgment of an immigration officer, pose a public safety or national security risk.
Among other specifics, the Order directs the Secretary to issue guidance and propose regulations to ensure lawful collection of fines and penalties from those unlawfully in the United States. It also directs the hiring of 10,000 additional U.S. Immigration and Customs Enforcement officers and empowers state and local law enforcement to perform the functions of immigration officers.
In addition, the Order mandates the issuance of a weekly list of criminal actions committed by unlawfully present individuals and jurisdictions that failed to honor detainers. The Secretary and Attorney General are directed to collect data and provide reports on the immigration status of unlawfully present individuals that are incarcerated. Further, an office to provide professional services to victims of crimes committed by removable individuals is to be created within the U.S. Immigration and Customs Enforcement.
- Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals
The January 27th Executive Order is based on a stated policy to protect U.S. citizens “from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States Immigration laws for malevolent purposes.” The Order proclaims that immigrant and nonimmigrant entry into the United States by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen would be “detrimental to the interests of the United States” and suspends entry of those nationals for 90 days unless the individual is traveling on a diplomatic visa, North Atlantic Treaty Organization visa, or C-2 visa for travel to the UN. The Order also directs the Secretary of the Department of Homeland Security (DHS) and Secretary of State to reassess the information needed for visa adjudications by country and produce a report within 30 days. The Secretary of State will then request that foreign governments produce that information within 60 days of notification. If the foreign government fails to do so, they can be recommended to a Presidential list of countries whose nationals are prohibited from entry to the U.S. The Secretaries may still facilitate visas for nationals of these countries on a case-by-case basis and when doing so would be in the national interest of the United States.
The Order also directs the implementation of additional screening requirements for visas to be coordinated between the Secretary of State, Secretary of DHS and the Federal Bureau of Investigation. The program is to include such measures as a database of identity documents to ensure duplicate documents are not used by multiple applicants; amended application forms with questions aimed at identifying fraud; and “a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.”
In addition, the Secretary of State is to suspend the U.S. Refugee Admission Program (USRAP) for 120 days. Further, entry of Syrian nationals to the United States has been suspended until the President has determined that sufficient changes have been made to USRAP to allow for their entry. The Order also limits the number of refugees that can be allowed in the U.S. in FY2017 to 50,000.
Among other specifics, the Order mandates completion of a biometrics entry-exit tracking system for all travelers to the Unites States and directs the Secretary of State to immediately suspend the Visa Interview Waiver Program as well as review all nonimmigrant visa reciprocity agreements so as to ultimately adjust visa validity periods, fees, and treatment to match the treatment U.S. nationals receive.
FY2018 H-1B Cap Season
The H-1B cap season is right around the corner. Each year U.S. Citizenship and Immigration Services (USCIS) accepts H-1B petitions from companies seeking to employ foreign workers in specialty occupations. USCIS limits the number of petitions accepted each fiscal year to a federally mandated cap of 65,000. An additional 20,000 H-1B visas are also made available for beneficiaries that possess a U.S. Master’s degree or higher from qualifying educational institutions.
The petitions can be filed beginning in April, six months before the start of the 2018 fiscal year on October 1, 2017. Since April 1 falls on a Saturday this year, Monday, April 3, 2017 marks the opening of the filing period for FY2018 H-1B petitions. The annual cap limit for H-1B visas has been reached and exceeded within the first week of the filing period in every year since FY2014. If USCIS receives more petitions than the annual limit, it will conduct a computer-generated random “lottery” in order to select 85,000 petitions for acceptance. USCIS will reject the rest of the petitions it receives. Given the trends of recent years, practitioners fully expect there will be a lottery again this year.
In order to afford foreign workers the best chance at being selected during this year’s H-1B lottery, employers should start identifying potential H-1B candidates now. The process of putting together the necessary documents can take weeks depending on the applicant. In addition, the H-1B requires the certification of a Labor Condition Application (LCA), which is submitted to the U.S. Department of Labor (DOL), and DOL can take up to 10 days to certify the LCA. Employers should avoid waiting until the last minute to start preparing. Further, starting the process as soon as possible means identifying any H-1B eligibility issues early, potentially with enough time to remedy them. Given the high demand for H-1B visas, it’s best to get the process underway now so that the H-1B petition is ready for arrival at USCIS on April 3, 2017.
New Form I-9
As a reminder, as of January 22, 2017, employers are required to use the latest version of USCIS’s Employment Eligibility Verification Form I-9. USCIS recently updated the form to the edition dated November 14, 2016 (found in the lower left hand corner). All prior versions of the form are now invalid.
In addition to some substantive changes to the form, the electronic version functions as a “smart” document programmed to help the user complete the form accurately. A copy of the revised form can be found here along with instructions