Insight into Immigration

The Trump Administration’s New “Public Charge” Rule

boydadimmigrationrallyThere’s been no shortage of things to write about over the past two-and-a-half years, either substantively or otherwise.  The Trump Administration’s (or Stephen Miller’s) decision to change the “public charge” rule ranks up there as one of the most important things that I’ve had an opportunity to address.  Assuming no litigation to stop the change, the proposed change to the “public charge” rule will dramatically expand the number of immigrants that the Department of Homeland Security (DHS) could deem ineligible for lawful permanent residence (i.e., for Green Cards) or admission to the United States on account of income level and prior use of certain public benefits.

As often is the case in these articles, a little context is in order.

Under the Immigration and Nationality Act (INA), an individual may be denied admission into the United States or denied the ability to become a Green Card holder if he or she is “likely at any time to become a public charge.”[1]  An individual who has previously been admitted to the United States may also be subject to removal / deportation from the United States based on a separate public charge ground of deportability.  There are certain exemptions to these provisions (e.g., for refugees and asylees).

DHS and the Department of State (DOS) are the agencies that implement the INA’s public charge provisions. DHS addresses whether to make a public charge determination when an individual applies to become a Green Card holder in the United States.  DOS, on the other hand, makes its own public charge determination when its consular officers review applications for immigrant visas (the document that allows an individual to enter the United States as an LPR).

Although the INA does not itself define what the term “public charge” means, DHS guidance has defined it to mean a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.”[2]  Historically, in determining whether an individual meets the definition for public charge inadmissibility, a number of factors must have been considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.[3]  Also important in the consideration is whether the petitioner who, e.g., sponsored his or her qualifying family member, submitted a sufficient “affidavit of support”.[4]

On August 14, 2019, DHS published a final rule governing the INA’s public charge grounds of inadmissibility. It goes effect on October 15, 2019.  If not prevented from going into effect, the rule will have a chilling effect on families throughout the country who choose to forgo essential services to avoid imperiling their immigration status. (Candidly, the very announcement of the new rule has already had this chilling effect.)

The new rule dramatically changes the standard by which DHS determines whether an applicant for a Green Card or admission to the United States is “likely at any time to become a public charge.”  Under the new rule,[5]DHS removes the consideration of whether an individual is primarily dependent on public benefits, and now redefines public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.[6]  This rule will severely punish individuals for seeking basic needs and will no doubt put families at risk of separation.

As alluded to earlier, under current law, a petitioner (e.g., family member) for someone applying for a Green Card or admission as an immigrant is typically required to file an “affidavit of support”, which wasn’t always outcome-determinative as to whether an individual would likely at any time in the future become a public charge, but was very helpful in swaying that determination in favor of the applicant.  Not so any longer under the new rule.  Under the new rule, DHS adjudicators will apply a complex totality of circumstances test that weighs the individual’s age, health, family status, education and skills, and assets, resources, and financial status, all while taking into account a broad range of positive and negative factors. DHS has also indicated in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits defined by the rule.

There are many consequences to this new rule.  The new rule is far more restrictive than current policy, and no doubt will result in higher denial rates for those applying for Green Cards that are subject to public charge determinations. Moreover, the new multi-factor test will leave too much discretion to DHS adjudicators and likely will also produce inconsistent and unpredictable decisions.

As bad as all that is, and it’s bad, more importantly the announcement of the new rule, and its implementation, has created and will now exacerbate a chilling effect felt throughout immigrant communities.  According to the Urban Institute, about 14% of adults in immigrants families indicated that they or a family member opted not to participate in a non-cash public benefit program in 2018 because of their concern over jeopardizing their green card eligibility.[7]  Again, this new rule will punish individuals for seeking very basic needs.

This new rule is yet another brick in what has come to be known as Trump’s (or dare I again say Stephen Miller’s) “invisible wall”, which has been nothing more than far-reaching policies and practices restricting legal immigration to and in the United States.  Enough is enough.

[1]INA §212(a)(4); 8 U.S.C. §1182(a)(4)(A).

[2]See“Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

[3]An exception to this would be the lack of an “affidavit of support,” if one is required for an individual to become an LPR or to be admitted to the United States.

[4]Seee.g., 8 U.S.C. §1183a.

[5]8 C.F.R. §212.21(a).

[6]The new rule defines a public benefit as (1) Any federal, state, local, or tribal cash assistance for income maintenance, including: (a) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.; (b) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; (c) Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); (2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c; (3) Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f; (4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f); (5) Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and (6)

Public housing under section 9 of the U.S. Housing Act of 1937.

[7]http://www.urban.org/research/publication/adults-immigrant-families-report-avoiding-routine-activities-because-

immigration-concerns.

Immigration in the News

screen_2x.jpgThe other day, I saw the following headline on the NBC news site: Rep. Steve King: I drank from the toilet-fountain hybrid at border facility and it was ‘pretty good’.  The article describes Rep. King’s recent visit to a migrant detention center where he explains that he “went into that cell where it was reported that they were advised they had to drink out of the toilet” and that drink was “pretty good.”

I’m sorry, what?

I’ve worked in this field, either as a lawyer or an advocate, for over 30 years now. Immigration has always been a hot topic, but never the proverbial third rail of politics as it is today (and has been for about the last three years).  When I read the article, I thought it would be interesting (but ultimately found it to be rather sad) to take a sampling of other immigration-related articles that have been in the news cycle over the last month or so. Here a just a few:

  • Many Moms Say Kid’s Health Worsened in Immigration Custody. According to the New York Times, a Dilley Pro Bono Project study found mothers who were detained this past summer reported that the health of their children worsened in custody, including bouts of fever, vomiting and diarrhea.
  • Pentagon Details Programs Targeted for Cuts to Fund Border Wall. The Wall Street Journalreports that the Trump administration plans on diverting $3.6 billion from military-construction projects in 23 states, 3 U.S. territories and at least 19 countries to build or fortify portions of the President’s wall along the U.S.-Mexico border.  Recall, of course, that the President has told us countless times that the wall would be paid for by Mexico.
  • Chief of U.S. asylum office reassigned as White House pushes for tighter immigration controls.According to the Washington Post, in what appears to be a demotion, the head of the asylum office at U.S. Citizenship and Immigration Services (“USCIS”) is being removed from his job and reassigned, “a move that follows multiple White House-directed attempts to raise new barriers to those seeking humanitarian refuge in the United States.”

As I write this article, the articles above are just from the day before. Here are a couple more from August.

  • Trump Administration to Divert Hurricane Relief Funds for Border Detention. Just days before Hurricane Dorian devastated the Bahamas, and was on track to impact coastal areas of the United States (although not Alabama), The Wall Street Journalreported that the Trump administration planned on using $271 million of Department of Homeland Security (“DHS”) appropriated funds, including some funds designated to help hurricane-stricken areas, to detain and remove immigrants who unlawfully cross the southern U.S. border.
  • Fed Up With Immigration Backlog, Lawyers Head to the Courts. As a result of what I can only say feels like unprecedented backlogs and delays, Bloomberg reports that attorneys are turning to the federal courts in an effort to “unclog” massive immigration application backlogs, some lasting up to seven years for simple applications.

There are so many more.  The new “public charge” rule,[1]the immigration raids in Mississippi and the countless kids left parentless as a result of them, and so on and so on.

What have we become?  Who have we become?  The bad news seems endless, and with it, we see almost daily dramatic changes in DHS policy under the Trump administration which have and continue to undermine our legal immigration system that the agencies that were created to facilitate.

There are processing delays, changes impacting students and scholars, changes in the “public charge” ground of inadmissibility, not to mention the ever-present issue that U.S. employers undergo annually to hire coveted H-1B, H-2B or H-2A nonimmigrant workers.

We need to hold DHS and the President accountable for the hardship they are creating to families, vulnerable populations, and U.S. businesses around our great country. The public deserves no less.

[1]I will be addressing this very critical change in a separate article.

Back to School : Immigration and Education

camp counselorsAs I write this article, we’re now into September, the end of summer is here, and my kids are heading back to school. One of my sisters-in-law is an elementary school teacher in the area, and invariably when we gather at family events, she tells me that her best and hardest working students are those from other countries. She also tells me that those kids’ parents support their kids and their education in ways she does not see with their U.S. citizen counterparts.  As she states it, it just seems to mean more to them.

This always makes me think about immigration and education in America. There are so many ways to approach this. From elementary school through college and beyond, foreign students and their parents face a myriad of challenges, including simply attaining their educational goals, including accessing college.

All children, regardless of their immigration status, have a constitutional right to attend our nation’s public schools from kindergarten through high school.[1] While a quality education can provide low-income Americans and immigrants with a path out of poverty, the challenges confronted by students who are not proficient in the English language create additional hurdles for immigrant students.  Yet, as my sister-in-law always notes, they and their families work very hard to succeed.  And this success can be measured.

During the Trump presidency, we’re becoming numb to the inflammatory rhetoric about immigrants, and it seems that the President’s focus for the 2020 elections will not be on traditional kitchen table issues, but rather divisive and misleading statements about America’s borders, asylum seekers, and the like. The undertone of all this is that some how immigrants pose both a physical and economic threat to native-born Americans.  Nothing could be further from the truth.

Here are some facts:

  • According to the Brookings Institution, children of immigrants tend to attain educational outcomes that are like those of native-born Americans, but with higher rates of college and postgraduate attainment (i.e., they are more likely to be highly educated).
  • According to the Cato Institute, 43% of all recently-arrived immigrants are college graduates, compared to 29% of native-born Americans.          

Fast-forward to what happens after these kids get out of college:

  • A June, 2011 report from Partnership for a New American Economy states that 40% of Fortune 500 companies were founded by immigrants and their children, employing over 10 million people worldwide.

According to Inc., immigrants launch 20% of U.S. businesses despite being only 13% of the population.

There’s no shortage of data on the positive impact of immigration on our economy. And an argument can be made that it all starts with a quality education.  While the federal government imposes significant restrictions on foreign students who wish to come to the United States to study (e.g., they most show that they have sufficient funds to cover all their expenses during their anticipated course of study), many states, including New York, are now becoming more progressive in enacting tuition equity laws for those foreign nationals already present in the United States.

Generally, these laws permit certain students who have attended and graduated from secondary schools in their state to pay the same tuition as their “in-state” classmates at their state’s public institutions of higher education, regardless of their immigration status.  Some states, New York again also included, offer financial assistance to students who meet certain criteria, regardless of their immigration status.

These laws are being enacted to help young people (like Dreamers), who were brought to the United States by their parents, through no fault of their own, who have worked hard in school with the hope of going to college and often discover that they face obstacles preventing them from doing so, again not of their own making.

And, playing it forward from what my sister-in-law tells me, the students (and their parents) who benefit from these policies tend to be very goal-oriented, with very high academic standing.  Why in the world would we want to hinder their academic success when the resulting benefits of their education are so positive for America?  Among other things, immigration makes America great … and always has.

[1]Plyler v. Doe, 457 U.S. 202 (1982).

Enforcement Actions and Raids in the Age of Trump

??????????????????????????????????????????????????????????????????????????????As I write this article, the Saratoga thoroughbred racing season is just days away from its opening day. The trainers, veterinarians, farriers and jockeys can all be seen milling around the barns and training track. Downtown, the community is buzzing with visitors from all over the world, and the restaurants and other hospitality-based businesses are filled to capacity.

Meanwhile, in Washington, D.C., our president is planning large-scale enforcement actions and raids, apparently in ten major cities across the country. Media outlets are reporting that the raids will take place in Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.

Although not a major city (size-wise anyway), the President’s proposed actions have people and businesses worried in my own hometown of Saratoga Springs. Unfortunately, it is now common to see U.S. Immigration and Customs Enforcement (“ICE”) conducting enforcement actions in our community.  It started in earnest in the Spring of 2017, and it continues today.  It is having a real impact on service-industry businesses. This time of year, it also impacts the race track’s back stretch workers.

The back stretch workers are absolutely essential to the horse racing industry.  They do all of the little things to make our track experience enjoyable (and candidly they perform jobs that most U.S. workers don’t want to do.).  A great many of these workers are foreign workers. And although most of these workers are here lawfully, certainly some are not.  Likewise, in our restaurants and hotels, many of the back-of-the-house workers that you rarely if ever see are also foreign workers.  And yes, I am sure some of them are not here lawfully.

President Trump’s enforcement actions and raids are happening amid a very tight labor market nationally.  Saratoga Springs is fortunate to have very low unemployment.  But with that comes issues associated with hiring and retaining enough workers to fill year-round labor needs, including the bump that employers need during track season.

Some reports suggest that President Trump’s immigration raids will focus on migrant family units with final orders of removal.  Other reports have indicated that targeted individuals will be minors who came into the U.S. without their parents and have since turned 18, individuals who were ordered removed in absentia, and individuals who missed a court hearing and did not thereafter respond to letters mailed to their homes by the Department of Justice.  The common theme seems to be the mass round-ups of vulnerable families from Central America who have fled to the United States to seek asylum and have since been ordered removed.

In this era of enforcement actions and raids, it is critically important that we remember that every person living in the United States, including those individuals who are undocumented immigrants or otherwise here unlawfully, have certain rights under our Constitution, whether they be in public, in their workplace, or in their home.

If you know someone who is undocumented or otherwise present in the United States unlawfully, and an ICE officer stops them on the street or in a public place, they have rights.  First, they have the right to remain silent. They do not need to speak to the immigration officers or answer any of their questions.  Second, they may refuse a search. If they are stopped for questioning but are not arrested, they do not need to consent to a search of themselves or their belongings.  (An officer may “pat down” an individual’s clothes, however, if he or she suspects an individual has a weapon.)  Finally, every individual has the right to speak to a lawyer. If an individual is detained or taken into custody, then he or she has the right to immediately contact a lawyer.

If an individual is in their home, and an ICE officer knocks on their door, in addition to all of the above rights, they do not have to open the door or let the officers into their home unless they have a valid search warrant signed by a judge.  Finally, if an ICE officer comes to someone’s work place, they again must have a valid search warrant or the consent of the employer to enter non-public area.

For additional Know Your Rights resources, I would encourage you to check out either the Immigration Legal Resource Centeror the American Civil Liberties Union.

The President’s enforcement plans are a monumental waste of time and resources and, as always, grounded in politics.  We should all remain focused on real solutions to the immigration problem that has plagued our country for longer than I care to remember.  The members of our community who are being arrested, detained and deported are mothers, fathers and children.  They’re our neighbors.  They’re the people who make your summer in Saratoga experience all that you want it to be for you and your families.  Let’s stop playing games and starting working on real solutions. It’s about time.

 

Not-for-Profits and the Importance of Immigration Advocates

clinicSome of you know that I was engaged by the late Sr. Maureen Joyce, the then-CEO at Catholic Charities of the Diocese of Albany, in July 2000, to help Catholic Charities launch an immigration program that would serve low- and no-income individuals from a 14-county area in and around the Capital Region. Catholic Charities created the immigration program to foster and facilitate family unity, freedom, and citizenship for eligible foreign-born persons by providing low-cost and high-quality legal services. Catholic Charities also engages in public advocacy and community training and outreach to advance the fair treatment of our nations’ immigrants, and to protect the rights of such immigrant and refugees.

My initial task was to obtain accreditation for the agency with the Board of Immigration Appeals (“BIA”), which is part of the Executive Office of Immigration Review (“EOIR”), so that Catholic Charities could provide services to individuals who were in need of immigration assistance. Once we did that, I hired a staff of one, who works part-time. More recently, we’ve hired another individual, who also works part-time. My work for the agency is part-time. Although Catholic Charities is authorized by the BIA to charge fees for its services, to date we never have.
The Catholic Legal Immigration Network, Inc., commonly known as CLINIC, is the legal support arm for Catholic Charities’ immigration programs across the country. CLINIC was established in 1988 by the U.S. Conference of Catholic Bishops to support the rapidly growing network of community-based immigration programs like ours in Albany. CLINIC’s creation enables Catholic organizations across the country to get the necessary training and institutional support they need to provide low or no cost immigration legal services to those in need.

Here are just a few facts about CLINIC:
• In 2017, CLINIC’s network conducted an estimated 276,000 consultations, more than half of which became cases for network agencies.
• Also, in 2017, CLINIC’s network filed approximately 247,000 applications, petitions, motions, or waivers. Those applications served about 500,000 people, including the applicants themselves and their dependents.
• Volunteers accounted for more than 84,000 hours of assistance in 2017, enabling programs to provide legal services to a broader base.
• And finally, also in 2017, CLINIC supported nearly 5,400 community outreach presentations, which reached nearly 325,000 people, all of which provided necessary and importation information about legal rights and options.

There are many “perks” of being member organization of CLINIC. For me, the biggest perk is being able to work with, and be supported by, a group of seriously talented immigration lawyers and advocates. Last month, and each year for nearly the last twenty, I have attended CLINIC’s Annual Convening. Among other things that takes place at the Convening, attorneys and advocates gain insight and premier education about immigration law, program management and advocacy. The Convening moves around the country each year. This year we were in Pittsburgh. In the past, we’ve been to Tucson, Portland, New Orleans and of course Washington, D.C. Regardless of the location, I come home every year so incredibly impressed by the level of knowledge that the attorneys and advocates who teach the programs have, and their incredible commitment to protect the dignity and the rights of the immigrants that they and we serve. I marvel at how much they know and how much I still have to learn. I am so incredibly grateful for their incredible passion and commitment.

CLINIC’s staff trains close to 10,000 people a year, in topics ranging from the basics of immigration law to the nuances of representing clients in detention and removal / deportation proceedings. It’s hard work and it’s very complex. They make it seem easy, and more than anything, it’s clear that they love what they do. It’s very motivating. When I return each year, I am energized to keep trying, to perhaps do just a little more.
In these very tumultuous and politically troubling times, CLINIC’s work, and ours at Catholic Charities in Albany, is more important than ever. Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to almost all immigrants except for perhaps “the best and brightest”, the work of CLINIC, its member agencies, and frankly all not-for-profit immigration programs across the country, needs your support. We all need to do our part.

Trump’s Immigration Agenda: Asylum

??????????????????????????????????????????????????????????????????????????????????????????????Now that the midterm elections have come and gone, and we’re fully two years into the Trump presidency, it seems like an appropriate time to take a look at various pieces of the President’s immigration “agenda”, if you can call it that.

For far longer than I care to remember, I have hoped that our immigration system would be reformed. Immigration “reform” has seen various fits and starts over the past 30 or so years, whether in Congress or the Executive Branch, but nary have these two branches of government, or Congress between its two houses, been able to get on the same page for meaningful reform.

As a result, we’ve seen various changes to our immigration system by means of executive action or regulatory changes.

President Trump relies on executive action seemingly weekly, admittedly as did his predecessors in the Oval Office as well. According to an American Immigration Council study published in 2014, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. That number seems to be growing exponentially during the current administration. President Trump is using this authority, although in his case, he’s using executive authority to eviscerate the asylum process.

For example, in November 2018, the President issued a proclamation that, in combination with a rule promulgated by the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”), bars individuals from seeking asylum if they entered the United States from Mexico between official ports of entry. This proclamation is entirely inconsistent with current law that states that all persons arriving to the United States, whether at or between ports of entry, have the right to seek asylum. Perhaps not all persons who apply for asylum are eligible for that relief. That’s a different issue. But law says that everyone deserves a full and fair opportunity to pursue it. This proclamation is currently subject to legal challenge.

Before that, in April 2018, the President, through his then Attorney General, implemented a “zero tolerance policy”, which resulted in, and continues to result in, the widespread separation of parents and children arriving together at the U.S. southern border between ports of entry. The President’s policy mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including those seeking asylum in the United States.

Because of the public outcry associated with this policy, in June 2018, the President issued an Executive Order addressing the family separation crisis that he created, by expanding the use of family detention. Recent news reports have suggested that the Trump Administration did not then have enough information to reconnect parents with their kids, except for a very few.

More recently, in January 2019, DHS announced its new “Remain in Mexico” policy, which would force individuals arriving at the U.S. southern border who are fleeing violence and persecution in their own countries to remain in Mexico pending their asylum hearing before a U.S. immigration judge. This new policy dramatically changes the well-established process for applying for asylum at the U.S. southern border. It also makes it substantially more difficult for asylum seekers to receive a fair and meaningful review of their claims as required under U.S. law.

And finally, and most recently, in April 2019, the President issued a memorandum ordering further changes to U.S. asylum policies; most notably, a requirement that asylum seekers actually pay a fee just to apply for protection. This proposed change would be the first time in our history that individuals seeking asylum would have to pay to apply for asylum. Asylum seekers are fleeing violence and persecution in their home countries. They arrive at our border with little more than the clothes on their backs and whatever they might be able to carry in their two hands. Forcing them to pay a fee, even if nominal, would be an insurmountable challenge to many asylum seekers, thus leaving them unable to seek the very protection that U.S. law is supposed to afford them.

The President continues to use whatever means he can to gut our asylum protections, and in his view, to deter the flow of refugees to our southern border. The last two years of executive actions and policy changes has significantly impacted families who are doing nothing more than seeking safe passage under long-standing U.S. asylum protections. It needs to stop.

Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to those who seek protection under U.S. asylum law, the only way meaningful change will occur is at the ballot box. That’s less than two (long) years away. We now need to do our part.

 

[1]The regulations would also require applicants to pay a fee to apply for work authorization for the first time. Currently, asylum applicants can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.

More H-2B Visas Allocated But Only For Returning Workers

female scientistMy wife was listening to the news the other day about the border crisis (yes, it’s real, but certainly not in the way our President describes it) and suggested that I write about it. She’s right, I should write about it. And I will. But first, my New Years Eve debacle has one further (and hopefully final) chapter to it. (I feel like I need to finish the story.) I will be brief.

So, it’s bad enough that as the clock struck midnight on New Years Eve many of my colleagues and I were sitting at our offices or at our homes in front of our computers preparing to file temporary labor certification applications with the U.S. Department of Labor (“USDOL”) for our clients that participate in the H-2B visa program. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL for a total of 33,000 H-2B visa numbers, and because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down.

Eventually, a week later, the USDOL fixed their computers, and all the applications were filed. Shortly thereafter, U.S. Citizenship and Immigration Service (“USCIS”) announced that it had received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019. Some of my clients were affected.

Fast forward to last week. The Department of Homeland Security (“DHS”) and the USDOL announced, after consultation with each other and after weighing several factors, including whether U.S. workers would be harmed, that an additional 30,000 H-2B visas would be allocated for the remainder of FY2019. Sounds great, right? Well it is, sort of.

The problem is, the additional visas will be available only to applicants who have held H-2B status in at least one of the past three fiscal years (2016, 2017 and 2018). These are called “returning workers.” So that means foreign nationals who have not participated in the H-2B visa program in the past three fiscal years, or even ever, are precluded from coming being sponsored by U.S. employers who have established a need for temporary workers (e.g., seasonal, peak load, etc.). Again, I have clients that are affected.

Case in point. I have two clients that are not only participating themselves for the first time in the H-2B visa program, but had identified a number of workers that were qualified to do the work their companies needed them for, but none of those foreign workers had ever participated in the H-2B visa program before.

Of course they could try to identify other workers that will meet the guidelines of the governments new rule (which has not even been published yet). But that takes time and can be expensive. And for what purpose? If the government is going to provide additional visas for the H-2B program, what sense does it make to limit the availability of those visas to foreign nationals who have been issued H-2B visas in the past? Seems pretty arbitrary to me?

The H-2B program is an absolutely necessary program for many, many employers who have seasonal or peak load business needs. The process for participating in it, however, is unnecessarily cumbersome, now seemingly arbitrary, and desperately needs to be reformed. Please, Congress, get to work and fix this.

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