New California Employers’ Requirements under AB 450: Immigration Worksite Enforcement Actions

California Assembly Bill No. 450 (AB 450) regarding California employers’ obligations when subject to federal immigration worksite enforcement actions was signed by Governor Brown on October 5, 2017, and took effect on January 1, 2018.  As part of a group of immigration-related bills recently signed into law, AB 450 is hailed by advocates as solidifying California’s status as a Sanctuary State.  The law introduces several requirements applicable to public and private employers in California.  How the California Labor Commissioner or California Attorney General will enforce the law is still an open question, given that federal law ordinarily preempts state law in the area of immigration, and because there is uncertainty surrounding which federal immigration enforcement agents must be refused entrance or documents under the new California law.  Below we detail a few of the new requirements for employers:

H-1B “cap” season and the government shutdown

Although many businesses have become accustomed to the seasonality of sponsoring H-1B visas, there is a new reason for employers to identify candidates and employees potentially needing H-1B sponsorship early this year: the looming government shutdown.  Although U.S. Citizenship & Immigration Services (USCIS, the agency that adjudicates H-1B visa petitions) is fee-funded, and operates as usual during a shutdown, a government shutdown affects the issuance of a critical H-1B prerequisite document by the U.S. Department of Labor.  Without this document, the H-1B “cap” case cannot be filed.  Currently the government is funded until February 8, 2018, and future shutdowns appear possible before the April H-1B filing window opens.  Therefore, it’s imperative to initiate cases, now, while the government is “open for business.”

As background, the H-1B visa is the U.S.’s workhorse visa for professionals.  Not all jobs and all individuals are H-1B-eligible.  In general, the job must be one that ordinarily requires knowledge and skills obtained by earning a Bachelor’s or higher degree in a specific field, and the individual must have the required degree or equivalent.  For first-time H-1B applicants, there is a narrow application window in the first week of April for employers to submit H-1B petitions to USCIS.  Depending on the issues in a case, it can take several weeks for an application to be ready to file.

© Jewell Stewart & Pratt PC 2018

USCIS Restricts Availability of NAFTA Work Authorization (TN Status) for “Economist” Category

On December 18, 2017, U.S. Citizenship & Immigration Services (USCIS) announced a policy change affecting the adjudication of applications for TN visa status under NAFTA. 

Background on TN visa status

TN visa status allows citizens of Canada or Mexico to work legally in the U.S. if their employment fits within any of 62 occupational classifications and they have the corresponding educational and/or professional qualifications.  One such occupational classification is “Economist.”  The full list of eligible occupational classifications is found in Appendix 1603.D.1 of the NAFTA treaty, as well as in the federal regulations at 8 C.F.R. Section 214.6.

USCIS Accepts Applications Under the International Entrepreneur Rule, While Pushing Plans to Abolish the New Rule

On December 14, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the International Entrepreneur Rule (IER), in compliance with a federal court order. The IER regulations, 8 CFR § 212.19, allow qualifying foreign national entrepreneurs to enter the U.S. temporarily to develop and grow new businesses. At the same time it is accepting applications under the IER, however, the agency is preparing to publish a Notice of Proposed Rule-Making (NPRM) to rescind the IER. Thus, it is unclear whether individuals who apply to enter the U.S. pursuant to the IER will ultimately receive the benefits of the rule, or for how long.

DHS Publishes Proposed Rule to End Employment Authorization for Certain H-4 Spouses

On February 25, 2015, the Department of Homeland Security (DHS) published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.

Now, DHS has published a proposed rule to remove these H-4 dependent spouses from the class of aliens eligible for employment authorization. This would appear to reverse the 2015 H-4 EAD rule, and appears consistent with the Trump Administration’s aims under Executive Order 13788 (“Buy American and Hire American”). No details about how the reversal will be implemented have been shared at this stage.

Jewell Stewart & Pratt is monitoring developments and will post more information here when it becomes available. The U.S. Citizenship & Immigration Services’ Buy American and Hire American webpage can be found here. Our prior blog posts related to the beginning of the H-4 EAD rule can be found here, here, and here.

© Jewell Stewart & Pratt PC 2017

 

SCOTUS Allows Travel Ban 3.0 to Take Effect Immediately

Issuing two separate orders (here and here) on the Trump Administration’s Travel Ban today, the U.S. Supreme Court allowed the third iteration of the ban, issued via Presidential Proclamation on September 24, 2017, to take full immediate effect. We detailed the ban in our post here. The ban is pending litigation, but the Supreme Court’s ruling allows the ban to be implemented while the litigation is ongoing.   

© Jewell Stewart & Pratt PC 2017

Ninth Circuit Reinstates Travel Ban 3.0

The Ninth Circuit Court of Appeals today issued an order reinstating the Trump Administration’s third version of a travel ban. The ban was announced in President Trump’s September 24, 2017 proclamation and is now in effect; affected are nationals of Chad, Iran, Libya, North Korea, Somalia, Syria and Yemen as well as some Venezuelan government officials and their families. The Court preserved an exception to the ban for applicants who can meet a “bona fide relationship test” (to certain family members or entities) similar to the test described by the U.S. Supreme Court regarding Travel Ban 2.0. The Court will hear substantive arguments on December 6, 2017. 

© Jewell Stewart & Pratt PC 2017

Travel Ban 3.0 – On Hold by the Courts

In two separate Federal Court decisions issued on October 17, 2017, the majority of the travel restrictions set forth in President Trump’s September 24, 2017 proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” were blocked. As a result, nationals of Iran, Libya, Syria, Yemen, Somalia and Chad will not be restricted from traveling to the United States. However, all immigrants and nonimmigrants from North Korea and certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2) will continue to be restricted from travel to the U.S. The U.S. Department of Justice has stated that it will appeal these rulings.  

© Jewell Stewart & Pratt PC 2017

USCIS Interviews of Applicants for Employment-Based Permanent Residence – Update

As discussed in an earlier post, U.S. Citizenship and Immigration Services (USCIS) announced on August 28, 2017 that it will cease waiving interviews of applicants applying for “adjustment of status” (AOS) to U.S. permanent residence (green card) based on employment.  As part of the Trump administration’s plan to apply “extreme vetting” to would-be immigrants (and others), employment-based AOS applicants will be required to undergo an in-person interview at a USCIS field office. Approximately 130,000 applicants are expected to be affected per year.