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.