On the one hand, we have a President who is married to a naturalized citizen of the United States. To my understanding, Melania Trump was originally an O-1 nonimmigrant in the United States (a temporary visa status reserved for, in her case, a fashion model of extraordinary ability in business) who later used a comparable immigrant category to obtain lawful permanent residence. She then, eventually, applied for naturalization and became a citizen of the United States.
Fast forward, in what can only be described as a case of chain migration (something the President has professed to being opposed to), the President’s wife then petitioned for her own parents to come to the United States as immigrants, as she has the legal right to do under the law. Fast forward one more time, Mrs. Trump’s parents do come to the United States and, after a period of time, they apply for naturalization themselves, something they also have the right to do under the law. These naturalization applications, according to recent news reports, were granted. I work with clients every single day under similar fact patterns.
Juxtapose this with the fact that the President, himself individually and through his minion, Stephen Miller, is actively pursuing a policy to make it harder to become a lawful permanent resident (i.e., a Green Card holder), or for some lawful permanent residents to obtain citizenship. This is on top of all the other ridiculousness we’ve witnessed thus far over the summer, including the forced (and in many instances continued) family separations, actively opposing the continuation of Deferred Action for Childhood Arrivals (“DACA”), among other acts of stupidity and egregiousness.
How is this so? How can a man who’s own wife (indeed even his own ex-wife too) and who’s own in-laws are immigrants to this country be so callous and cold-hearted to literally an entire class of human beings (i.e., anyone who was not born in the United States but yet wants to permanently reside in the United States)? Can someone explain this to me? Is the President’s family better than all the other aliens who want to become permanent residents of the United States? Or do they simply have more means?
And what about Mr. Miller? It seems that his family too were immigrants to the United States, arriving through Ellis Island from what is now Belarus. It seems that Mr. Miller’s relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and become very successful. That’s a great story.
With that as backdrop, the President, through Mr. Miller, is now pushing to enact a policy that could penalize legal immigrants whose families receive a wide array of public benefits and make it more difficult for them to obtain citizenship. At its core, the President’s proposal would penalize lawful permanent residents if they or their family members (including their U.S. citizen family members) have ever used government benefits (e.g., health care subsidies under the Affordable Care Act, some forms of Medicaid, the Children’s Health Insurance Program, food stamps and the Earned Income Tax Credit). If I was a permanent resident, because one of my sons receives services from the county, I could actually be impacted under this law.
Up until 1996, lawful permanent residents were eligible to receive public benefits on the same terms as U.S. citizens. In 1996, however, Congress passed a welfare reform law that barred permanent residents who resided in the United States for less than five years from participating in any means-tested public benefit programs (e.g., Temporary Assistance for Needy Families, Supplemental Security Income, Medicaid/Children’s Health Insurance Program, and food stamps). The 1996 law labeled newly arriving immigrants who might not be able to provide for themselves as “public charges,” making them inadmissible unless they could demonstrate that they were not subject to that provision of the law.
The law still allows for the removal of lawful permanent residents who, within five years of their arrival to the United States, become public charges. That said, administrations prior to the current one have limited the public charge definition in this context to immigrants who use cash welfare programs or long-term institutional care funded by the government. Consequently, very few people have been removed from the United States. All this could change, however, if Mr. Miller gets his way. How so?
The law would redefine the terms “public charge” and “means-tested public benefits” to include a much wider variety of federal programs. Second, the government could remove legal permanent residents for using benefits. Under the President’s proposed policy, lawful permanent residents could be removed for using a wide variety of public benefits, potentially including food and nutrition assistance, federally subsidized health insurance through Medicaid or the Affordable Care Act, and even education benefits. Third, although the law currently allows immigration officials to refuse to admit prospective immigrants to the United States who could become public charges, the new policy, as currently written, could be interpreted to make a high-school degree or better a prerequisite for admission to the United States, or for someone to have a certain amount of assets. (This would obviously not impact the President’s in-laws, but could severely impact low-income or less well-educated immigrants from coming to be with their families). And finally, although also on the books now, the new policy would instruct federal agencies to request reimbursement for benefits used by legal immigrants. (This rarely happens now.)
So, where does that leave us? The haves and have nots? It sure sounds like it. It sure sounds like the President and Mr. Miller are attempting to portray legal immigrants as a drain on our system, somehow taking advantage of people like you and me. This is simply not the case. According to the CATO Institute, “[o]verall, immigrants are less likely to consume welfare benefits and, when they do, they generally consume a lower dollar value of benefits than native-born Americans.”
Mr. Miller’s family is an example of how immigrants can come to the United States, work hard, and become successful. But not everyone’s experience in America will be perfect, and sometimes individuals need to lean on our government for some help. No one should be forced to make a decision between ensuring their legal status in the United States is preserved against making sure their family is healthy and can eat. No one should ever have to make that decision.
Perhaps we were all wrong about President Trump? Maybe he does listen to the women in his life? Current reports suggest that the President’s own wife and daughter, Melania and Ivanka Trump, were the impetus behind the President’s executive order to end the separation of families at our southern border. I guess the fact that all four living former First Ladies condemned President Trump’s border policy was not enough. Quite frankly, I think we all owe a huge debt of gratitude to the brilliant journalists at all the Fake News organizations across the country who reported on the inhumanity we all saw as families were torn apart from each other as they tried to apply for political asylum in the United States.
Let’s back track a little bit though, because this crisis is far from over.
I recently noted the profound changes that happen in the world of immigration, literally on a daily basis. Two more cases in point. Last week, Attorney General Jeff Sessions issued the precedent decision of Matter of A-B-. This case held that victims of domestic violence no longer qualify for asylum protection in the United States. Since President Trump was inaugurated, the Attorney General has used his position to literally rewrite our immigration law. Through what has been a historically cautiously-used power, the Attorney General has taken certain immigration cases that were previously decided by the Board of Immigration Appeals (“BIA”), and in this case, has essentially eliminated a previous right of persecuted people to seek asylum in the United States.
And then of course there was President Trump’s now former border policy of separating families from each other as they endeavor to seek refuge in the United States from domestic and gang violence in their home countries.
With respect to Matter of A-B-, in a case he referred to himself, Attorney General Sessions narrowed the criteria for demonstrating membership in a particular social group and overruled the holding of Matter of A-R-C-G-. According to the Attorney General, domestic violence victims and other victims of crimes perpetrated by private, non-government actors no longer generally qualify for asylum. With this decision, the Attorney General continues to undermine the independence of both our Immigration Courts and the BIA.
The Attorney General’s decision in Matter of A-B- is a huge setback that overturns a precedential decision which firmly recognized the right of women who are fleeing domestic violence to avail themselves of the protection our asylum laws provide when their own governments fail in their duty to provide protection.
So now we’ve got women and families who have to make a choice. If they remain in their home countries, they may very well die as a result of domestic and gang violence. If they pick up and try to seek refuge in the United States, they now face an incredible uphill battle to obtain protection under our laws. And worse, if parents bring their minor children with them, they’ll be detained, albeit perhaps now together, potentially all throughout their lawful efforts to remain in the United States.
Along with his wife, daughter and the former First Ladies, literally everyone was opposed to Trump’s policy of separating or detaining families with minor children, including corporate executives, religious leaders across all faiths, health experts, and the list could go on and on. Similarly, there is a very long list of attorneys, advocates, retired immigration judges (“IJ’s”) and former members of the BIA that are opposed to Attorney General Sessions’ new decision in Matter of A-B-.
To date, the President’s border crossing policy has separated more than 2,300 minor children from their parents. The research is clear. According to Charles Nelson, a pediatrics professor at Harvard Medical School, “[t[he effect [of family separation] is catastrophic.” According to Dr. Nelson, the children’s heart rates go up, their bodies releases stress hormones, and over time, all of this wreaks long-term damage, both psychologically and to the physical structure of the child’s brain. Why on earth would the President want to do this?
As to the difficulty that women who have suffered domestic violence will now face trying to seek protection under our laws, in one fell swoop, the Attorney General erased a 15 year effort of the immigration courts and BIA to finally recognize that victims of domestic violence may qualify for asylum as a member of a particular social group.
The Trump Administration’s policies are doing nothing more than dehumanizing a large population of individuals who live in Central America, and specifically women and families who are subject to domestic or gang violence. When will this President stop the madness?
 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
 Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
Have you seen the news recently? The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) announced new efforts that will result in the forcible separation of families seeking protection in the United States under established U.S. law. Not only that, the Trump Administration announced that it will increase criminal prosecutions of parents attempting to enter the United States illegally, even those seeking political asylum in the United States, in its effort to tighten immigration enforcement.
In a recent speech, Attorney General Jeff Sessions stated that going forward, the United States would have a zero tolerance policy, suggesting that anyone crossing the border unlawfully into the United States will now be prosecuted. Even those seeking asylum in the United States. I quote:
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child to be separated, then don’t bring him across the border illegally.”
It is a bit ironic that on the very day First Lady Melania Trump made a public statement about cherishing and protecting children, the Attorney General was talking about U.S. policy of separating parents from children for immigrant families seeking asylum status in the United States. That’s right, when Melania Trump said that “children deserve every opportunity to enjoy their innocence”, Attorney General Sessions declared that U.S. Customs and Border Protection (“CBP”) will arrest parents, and thereafter separate them from their children.
With then candidate Trump putting immigration front and center in the 2016 election, and now President Trump doing the same ahead of this year’s midterm elections, I suppose no one should be surprised by any of this.
Does that mean if a family presents themselves at a proper border crossing point and applies for political asylum, seeking protection from unfettered criminal violence in their home country, that they won’t be prosecuted or separated?
Individuals who arrive at the our border, without proper documentation, are often subject to fast-track deportation processes called “expedited removal” or, in some cases, “reinstatement of removal” (if they’ve been removed from the United States previously). In each instance, however, the law requires that these individuals receive a preliminary screening interview with a U.S. asylum officer if they express a fear of persecution if they were returned to their country of origin.
Over the past several years, however, federal law enforcement officials have been very vigorous in prosecuting migrants for entering the United States without permission or for reentering the country without permission after a prior deportation or removal order. Indeed, tens of thousands of individuals are subjected to criminal prosecution for these crimes every year. I understand this. We are a nation of laws.
However, the United States is a signatory to the 1951 Convention and Protocol Relating to the Status of Refugees, which is supposed to prevent nations from penalizing individuals requesting protection from persecution or torture in their country of origin. In 2015, the Department of Homeland Security’s own Inspector General noted that prosecuting those “who express fear of persecution or return to their home countries” may be inconsistent with and may violate U.S. treaty obligations.
According to the Office of Refugee Resettlement, a division of the Department of Health and Human Services, more than 700 children have been taken from adults claiming to be their parents since October, 2017, including more than 100 children under the age of 4. The Office of Refugee Resettlement takes custody of children who have been removed from migrant parents. The American Civil Liberties Union filed a lawsuit in February to challenge the practice of family separation.
We need to find the proper balance of appropriately and humanely enforcing our immigration laws, protecting individuals from being returned to their home country, and preventing families from being forcibly separated while the U.S. immigration process plays itself out. Right now, all this new policy is doing is making criminals of people who are simply seeking refuge from violence in their home country, and separating already stressed families, including very young and vulnerable children. This is unacceptable.
A recent article in the WALL STREET JOURNAL referred to a March 30, 2018 email from James McHenry, the head of the Department of Justice’s Executive Office for Immigration Review (“EOIR”), to immigration judges across the country, indicating that new metrics will require immigration judges to complete three (3) cases per workday. As a lawyer, I am used to dealing with many cases every day, so at first blush, three did not seem like a lot. But in context of the immigration judicial process, it most certainly is. And the stakes are high.
According to A. Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges union, “[t]hey are allocating, on average for a case, no more than two and a half hours,” further noting that political asylum cases often include hundreds of pages of supporting documents and evidence, not to mention countless hours of testimony and deliberation. In addition, because different judges handle different types of cases, including complex ones that take more time, it does not make a whole lot of sense to apply the same standard uniformly to all judges. Again, Judge Tabaddor: “We deal with people who are unaccompanied children, with people who have mental competency issues, with people who have serious criminal convictions, and with people who have fear of returning to their home countries in case of threat of death.”
According to Syracuse University, the immigration court backlog is currently more than 680,000 cases. EOIR’s new requirements will force some judges to adjudicate cases more quickly than they have been. The average cases completed per year by immigration judges, according to the EOIR, is less than 680. The new metric will require judges to complete 700 cases per year.
Judge Tabaddor says that “[y]ou are going to, at minimum, impact the perception of the integrity of the court.” It’s a lot worse than that.
Immigration judges are appointed by the Attorney General and are employees of the Department of Justice. Unlike their regular federal judge counterparts, who have life-tenure, immigration judges can be fired by the Attorney General. Courts certainly have established “aspirational” case completion goals in order to move overall caseloads along, but numeric quotas have never been explicitly tied to judges individual performance evaluations. This will no doubt jeopardize an immigration judge’s ability to remain independent and impartial.
“The very concept [of a quota system] is in conflict with independent decision-making authority of judges,” says Judge Tabaddor, “because it pits the judges’ personal livelihood to mere completion of cases faster through the system, rather than making decisions that are based on the fact and the law of the case as they took the oath to do.”
One could also argue that mandatory quotas will lower the quality of adjudications and perhaps even compromise due process. The Immigration and Nationality Act requires that a respondent in removal proceedings be given a “reasonable opportunity” to examine and present evidence. Most respondents in removal proceedings do not speak English as their primary language. A strict time frame for judges to complete their cases would no doubt interfere with that judge’s ability to assure that this important federal right to examine and present evidence is respected.
Related to this, Judges may now feel more pressure to deny requests for continuances. An unrepresented person making his or her first appearance before an immigration judge may need more time to find an attorney. An individual seeking political asylum may need more time to gather and develop evidence that is often very difficult to obtain from his or her home country. Reasonable continuances are often necessary to allow individuals time to develop their case.
Here’s a novel idea. What about increasing the budgets for the immigration courts? Remember the backlog number above? 680,000 cases! Immigration courts are way under-funded relative to the budgets of immigration enforcement agencies. In the government’s 2017 fiscal year, the combined budgets of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”) exceeded $20 billion. By comparison, EOIR’s was about $420 million.
Let’s face it. By imposing numeric quotas on immigration judges, we’re doing little more than enabling the Trump Administration’s broader agenda of streamlining removal procedures in to so it can deport massive numbers of people at the expense of due process. The immigration court system can only function if due process is respected. This can only be accomplished if the judges have enough time to carefully review each case, conduct a thorough and fair hearing, deliberate the case, and then when all this is done, issue a well-reasoned decision that is consistent with the facts and relevant law.
United States Citizenship and Immigration Services (“USCIS”) recently announced that it’s changing its mission statement to eliminate a passage that describes the United States as “a nation of immigrants.” USCIS’s new mission statement reads as follows:
“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”
The previous mission statement read as follows:
“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”
Where do I start? Did you now that the director of USCIS, Lee Francis Cissna, is actually the son of an immigrant? Aren’t most of us if we trace back our lineage far enough?
In a letter to USCIS agency staff, Mr. Cissna said, “We are also responsible for ensuring that those who naturalize are dedicated to this country, share our values, assimilate into our communities, and understand their responsibility to help preserve our freedom and liberty.”
What Mr. Cissna did not mention in his letter to agency staff explaining his reasoning is that the phrase “nation of immigrants” was popularized by a book by President John F. Kennedy (published posthumously), titled “A Nation of Immigrants”, and is frequently used to convey the American ideal of multiculturalism. President Kennedy’s book explored the contribution of immigrants when the United States was in the midst of a debate over the direction of its immigration policy.
People who know me know my politics. I’m socially liberal and fiscally conservative. I am a registered Democrat. (I grew up in Albany after all.) I also used to work for Republican Senator Alfonse D’Amato. Back in those days, Washington was very different. Democrats and Republicans could debate issues during the day and enjoy a meal together in the evening. Senator D’Amato always worked with his colleagues across the aisle, including Senator Edward Kennedy.
In the wake of 9/11, Senator Kennedy, along with his colleague, Senator Sam Brownback, stated, “Immigration is a central part of our heritage and history. It is essential to who we are. Continued immigration is part of our national well-being, our identity, and our strength.” He wasn’t wrong.
In 1981, President Ronald Reagan stated, “Our nation is a nation of immigrants. More than any other country, our strength comes from our own immigrant heritage and our capacity to welcome those from other lands.” He wasn’t wrong either.
That was then, this is now. President Trump has used the phrase “nation of immigrants”, but he did so in a written statement defending his attempt to ban immigrants from seven Muslim nations.
Ensuring “the promise of the United States as a nation of immigrants” is no longer the mission of USCIS, the very agency charged with administering our immigration laws. On the contrary, the new mission statement reflects President Trump’s hardline stance on immigration and immigrants themselves.
Should the title be Immigration Reform 2.0 or 22.0? Maybe Immigration Reform Redux? Really, how many times have we started down this road, only to be disappointed (or, at least that’s the way I feel anyway)? Well, we’re starting down this path … yet again (albeit with some difficulty). So what’s the latest iteration?
On January 25, 2018, the Trump Administration House released its “Framework on Immigration Reform and Border Security”, a one-page outline of its plan to legalize the status of so-called “Dreamers” in exchange for what it calls sweeping reforms to the immigration system. The reforms are hardly sweeping, but they are dramatic.
The President’s framework proposes significant cuts to the “legal” immigration system (i.e., U.S. citizen or lawful permanent resident family members sponsoring their own qualified family members, e.g., possibly spouses, children, parents and siblings). This is referred to as eliminating “chain migration” or as the White House is calling it, “protecting the nuclear family.” The President is also looking for massive funding for border security and interior enforcement, including $25 billion for the border wall as well as more spending for Customs & Border Patrol and Immigration & Customs Enforcement agents. The President is also calling for the elimination of the Diversity Visa Lottery Program.
In exchange for all of this, the President’s plan would offer legal status to young people who currently have DACA status or who are otherwise DACA-eligible (estimated to be about 1.8 million people), including an opportunity to apply for citizenship after waiting a minimum of 10 years.
Not surprisingly, there’s been a public outcry against it from the Democrats and their progressive base. The official statement from the American Immigration Lawyers Association (“AILA”) reads as follows:
This proposal isn’t a serious effort to reach a deal on the crisis created by the administration when it terminated the DACA program. The dubious relief it offers to a questionable number of Dreamers is dwarfed by its offensive assault on families, the waste of tens of billions of taxpayer dollars on harsh enforcement that does next to nothing to improve national security, and a repudiation of Constitutional principles of due process. This proposal is completely untethered from common sense, decency, or American values.
There are several angles from which I could argue against the President’s “framework”, but I will limit myself to his efforts to end what he calls “chain migration” and the economics of that.
Every year, over 1 million new immigrants (i.e., Green Card holders) are admitted to the United States. About half of these individuals are the first in their family to permanently settle in the United States. The other half are joining their family members who arrived earlier. This is commonly known as “chain migration.” The starting point for these new immigrants may have been different (e.g., the family-based Green Card process, the employment-based Green Card process, or perhaps refugees who were resettled in the United States, among other possibilities). Ultimately, though, these permanent residents and perhaps eventual citizens of the United States can thereafter start to bring their own or other family-members to the United States.
The contributions of family-based immigrants to our U.S. economy, to our local communities, and frankly to the national fabric are great. The data suggests that they account for a significant portion of the United States’ domestic economic growth, contribute to the well-being of our current and future labor force, and play a key role in business development and community improvement. They are also the most upwardly mobile segments of the labor force. Here’s some data from the Migration Policy Institute.
- Immigrants accounted for 17%, or 27.6 million, of the 161.8 million persons in the civilian labor force in 2016.
- Of the 26.2 million employed foreign-born workers ages 16 and older in 2016, the largest share, at almost 32%, worked in management, professional, and related occupations.
A 2016 panel put together by the National Academies of Science Engineering and Medicine found that “immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents.” Among its findings:
- Immigration has an overall positive impact on long-run economic growth in the U.S.
- In terms of fiscal impacts, while first-generation immigrants are more costly to governments, mainly at the state and local levels, than are the native-born, in large part due to the costs of educating their children, as adults, however, the children of immigrants (the second generation) are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.
I could go on, and I am sure that those who oppose my views would come up with their own data to contradict mine.
In 1965, liberals and conservatives in Congress compromised their differences and created an immigration model that would favor “family unification.” That’s the system we have today. By no means is it perfect. If we restrict it, however, we will no doubt negatively impact our country’s economic growth.
Family-based immigration is essential to our economic growth, not only because of immigrants’ contributions in the workforce, but because the current policy does indeed attract the talent we hope to bring and need to bring from around the world. The United States trains entrepreneurs and other highly skilled individuals from across the world at our renowned universities. We want them to stay, to build companies and drive innovation right here in the United States. Consider, for example, that the current CEO’s of Tesla, Google, and Amazon were all born overseas. Many well-known companies would not exist at all if our immigration system had not enabled their founders or their parents to move to the United States in the first place.
If we create obstacles for individuals to bring their relatives to the United States, we will no doubt lose them to other countries with more progressive immigration regimes. We need to remind ourselves that “chain migration” is not a threat to the United States, but rather an essential economic strategy.
 The White House officially defines this as follows: The process by which foreign nationals permanently resettle within the U.S. and subsequently bring over their foreign relatives, who then have the opportunity to bring over their foreign relatives, and so on until entire extended families are resettled in the country.
 In 2016, about 1.49 million foreign-born individuals moved to the United States, which was a 7 percent increase from the 1.38 million that entered in 2015.
 “Civilian labor force” is defined as civilian persons ages 16 and older who were either employed or unemployed but looking for work in the week prior to participation in the U.S. Census Bureau’s American Community Survey (ACS) and Decennial Census.
Last month I wrote about receiving a call from a friend of mine who heads up the local affiliate of a national not-for-profit. As a reminder, among its many charitable endeavors, this not-for-profit runs a summer camp for kids. Some of their employees come from overseas. My friend, his superiors, and the association that represents the interests of his and other similarly situated not-for-profits are concerned that the Trump Administration, as a result of the Presidential Executive Order “Buy American and Hire American”, is going to revamp the J-1 Exchange Visitor Program, and specifically two of its component visa categories, the Summer Work Travel program (and possibly even the J-1 Camp Counselor program).
In our telephone conversation, he asked whether there were any alternative visa options that they might be able to consider. I told him there was, the H-2B nonimmigrant visa, but that the requirements for qualifying for an H-2B visa are much more onerous than the J-1 Summer Work Travel or Camp Counselor programs.
The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions), to accept “temporary” non-agricultural employment in the United States. Before doing so, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during the recruitment period. As this employment is temporary, the foreign national must also show “nonimmigrant intent” (i.e., that he or she has a compelling reason to return to his or her country of origin).
Like the H-1B program, there is an annual numerical limitation of 66,000 H-2B visas that are available in each government fiscal year. Under the regulations, an H-2B petition may be valid for up to one year for seasonal, intermittent, or peakload needs, and for up to three years for a one-time need. Also under the regulations, H-2B petitions may be extended for periods of up to one year, to a maximum of three years in H-2B status in some instances. To be eligible for a period of H-2B status beyond these limitations, a foreign national must remain outside the United States for at least three months. Spouses and children under 21 may hold a derivative H-4 status.
There are some key aspects of the H-2B visa program, among them, the employer identifying what its temporary need is. The job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. The following definitions apply:
- Seasonal. The seasonal definition of temporary need requires an employer to establish that their need for labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature and the period(s) of time during each year in which the employer does not need the services or labor. (Note that employment is not seasonal if the period of need is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees).
- Peakload. The peakload definition of temporary need requires an employer to establish that it regularly employs permanent workers to perform the services or labor at the place of employment and it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand and the temporary additions to staff will not become part of the employer’s regular operation
- One-Time Occurrence. The one-time occurrence definition of temporary requires an employer to establish that it has not employed workers to perform the services or labor in the past and it will not need the workers to perform the services or labor in the future or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker(s).
- Intermittent. Under this standard, an employer must establish that it has not employed permanent or full-time workers to perform the services or labor but occasionally or intermittently needs temporary workers to perform the services or labor for short periods.
As also noted above, before an employer can file a petition with U.S. Citizenship and Immigration Services (“USCIS”), it must first obtain a temporary labor certification from the USDOL. After a period of recruitment, the employer will file an application for temporary labor certification with the USDOL. The temporary labor certification represents an employer’s attestation of testing the labor market appropriately and in good faith to demonstrate that capable U.S. workers did not respond to its recruitment efforts or ultimately were not available (either due to lawful rejection by the employer, failure on the worker’s part to follow through or remain on the job, etc.) to perform the labor or services. Before filing the temporary labor certification, the law requires the employer to recruit for the offered position(s). This recruitment must take place within 120 days of the start date for the offered positions. Prior to the recruitment, the employer must also apply for and receive a Prevailing Wage Determination from the USDOL, which can take around 60 days to receive.
Once all of this is done, and assuming there are no available U.S. workers and the temporary labor certification is certified by the USDOL, the employer will file its H-2B petition with USCIS. It is permissible for an H-2B petition to be filed for multiple beneficiaries provided the temporary labor certification application on behalf of multiple workers entails “the same service or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment.” Once that’s approved, it will be forwarded to the U.S. embassy / consulate closest to where the foreign nationals reside and that issues H-2B visas.
I have completely over-simplified this process. It’s highly technical and keeping on top of the timing is critical. However, for an employer that has the type of needs that are outlined above, the H-2B visa may be a very viable option.
 On April 18, 2017, President Trump signed an Executive Order entitled “Buy American and Hire American.” The purported purpose of the “Hire American” portion of the order is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry into the United States of foreign workers. Most of the focus of the implications of this Executive Order has been on the H-1B nonimmigrant visa program. Other visa programs are clearly in the cross-hairs as well.