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Immigration and Covid-19 (2.0)
This time that we all find ourselves in is surreal to say the very least. Nothing is as it should be, and we truly have no idea when the old normal will be new again. Yet certain aspects of our lives must continue to move forward, including in my case, the work that needs to be done for my clients. As complex as the world of immigration is, it is made unbelievably more so when COVID-19 (Coronavirus) changes the landscape almost moment to moment.
The Departments of Homeland Security and State have taken some steps towards flattening the curve (e.g., cancelling in-person appointments, cancelling visa interviews, etc.). Far more aggressive action is needed, however, to ensure the safety of all our federal employees, our immigrant clients, and their representatives.
Although the Executive Office of Immigration Review (“EOIR”) has suspended all immigration hearings for non-detained aliens, they inexplicably continue to go on for detained aliens, at great risk to the very same people I’ve noted who need to be protected. The EOIR should close all the immigration courts, yet continue to ensure reasonable and safe (e.g., telephonic or video) access to counsel for detainees. Equally as important, the Department of Homeland Security (“DHS”) needs to ensure and protect immigrants from falling out of status during this awful COVID-19 pandemic.
For example, U.S. Citizenship and Immigration Services (“USCIS”) should extend all filing deadlines, excuse late filings and grant automatic extensions of stays for individuals whose authorized period of stay is set to expire. Likewise, the U.S. Department of Labor (“USDOL”) should relax its rules so individuals who are laid off or furloughed can maintain their lawful status.
I can’t tell you how many calls I’ve received over the last week or two from corporate clients asking questions about what to do about particular employees, some of whom are here, for example, on H-1B nonimmigrant (or other similar) visas and who would or will be adversely impacted if they were laid off or furloughed. Our immigration law, unfortunately and not surprisingly, is not very forgiving in these situations.
For example, employers who hire individuals who work for them on H-1B nonimmigrant visas, know that USDOL’s regulations require that they continue to abide by the labor conditions to which they agreed when they filed the H-1B petition with USCIS. These are the terms set forth in what is called the Labor Condition Application (“LCA”) filed with the H-1B petition. These concern payment of the required wage, full-time vs. part-time employment of the employee, and notice to employees in the area of intended employment.
As we all know, because of the COVID-19 outbreak, many local and state governmental authorities are instituting shelter-in-place, work-from-home, or stay-at-home orders to facilitate social distancing. In addition, the economic fortunes of many companies have fallen dramatically since the COVID-19 outbreak, including many small businesses that have all but shut down. This has prompted many employers to reevaluate their business operations. Consequently many employers are asking what happens to their foreign workers if they furlough, layoff, reduce hours, or they otherwise become unproductive during this crisis.
USDOL regulations require H-1B employers to pay the wage set forth in the LCA. Given that, how are employers able to place an H-1B worker in non-productive status while at the same time maintain compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status? The short answer is, they can’t.
“Non-productive status” is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), under the regulations, the employer is still required to pay the required wage.
Likewise, an employer cannot furlough, layoff, bench, or otherwise render an H-1B worker non-productive and, as a result, stop offering the required wage, if the employee is not able to work from home during a COVID-19 pandemic initiated “stay at home” order from federal, state, or municipal government authorities. If an employer did so, it would risk liability such as fines, back wage obligations, and, in serious cases, debarment from the USDOL’s temporary and permanent immigration programs.
As I explained to a client the other day, an employer could seek to convert a full-time H-1B worker to part-time, but this would require not only the filing of a new LCA to reflect this change, but also the employer would then be required to file an amended H-1B petition with USCIS (expending additional fees along the way). Although the H-1B worker would be permitted to commence part-time employment upon USCIS’s receipt of the amended H-1B petition, before this happens the employer would need to make the decision to undergo this effort, which is no inexpensive effort in normal time, let alone these times.
USCIS should suspend (or even waive) the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in an H-1B worker’s employment as a result of the COVID-19 outbreak. Not only is there legal authority for USCIS to do this, it’s also clearly the right thing to do. These are unprecedented times. Our government needs to show some leadership (and heart) so as not to make a terrible situation worse on all employers affected by COVID-19 and their foreign-born employees.
Tags: Coronavirus, COVID-19, Immigration.
A BROKEN Immigration System: The New Year’s Eve H-2B Debacle
You can’t make this stuff up. This is the world that I and a few other local colleagues of mine work in.
So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight. And then mayhem ensued, and I promise you, it was not fireworks or noisemakers. Let me explain.
One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program. 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 (e.g., landscape workers, ski resort employees, etc.). Before doing so, however, 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 a recruitment period.
Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year. Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.
Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers. Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission. Applications are processed by the USDOL in the order that they’re received. And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.[1]
As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.”[2] The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018. Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous. It was also really so unnecessary.
Readers of this piece know how much I long for meaningful reform to our immigration system. There are many substantive examples that I’ve written about over the past few years. This is not one of them. This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.
What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company? And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created? Was the system not adequately stress tested? Was no one monitoring it (perhaps in light of the current government shut down)?
As annoying as this whole debacle has been, it’s not missing New Years that bothers me. Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event. It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done. It really is ridiculous. The H-2B program is an absolutely necessary program for many employers. The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed
[1]For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.
[2] At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
Obama’s Immigration Executive Action: Some Lawful Immigration Changes
So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers. Here’s a brief overview.
1. Immigrant Visa Issuance. The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system. Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year. Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable. The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.
2. Optional Practical Training. The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas. The President also proposed to expand the degree programs eligible for OPT.
Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study. In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT. However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.
3. Aliens Whose Admission to the United States is in the National Interest. The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”
4. Inventors, Researchers, and Founders of Start-up Enterprises. The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.
5. L-1B Specialized Knowledge Aliens. For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program. The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.
6. I-140 Portability under AC21 §106(c). The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.
7. Labor Certification (“PERM”) Modernization. The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers. More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.
8. Human Trafficking and Crime Victims. The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.
The President announced other initiatives too (which I will write about at a later time). As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was). It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).
Immigration Reform by Executive Action: What Did Obama Actually Do?
So, the President finally did it. On November 20, 2014, President Obama announced a series of actions (not executive orders as it turns out) that his administration is taking to “fix” what he has repeatedly described as a “broken immigration system.” These actions involve, among other areas, border security, providing a temporary status (commonly called “deferred action”) for some aliens who are currently unlawfully present in the United States, and future legal immigration. So what did the President actually do? I’m glad you asked.
Border Security. Likely to placate those on the right, and certainly consistent with this Administration’s record level of deportations, the President announced he is implementing a “Southern Border and Approaches Campaign Strategy” which the Administration argues will “fundamentally alter” the way in which it marshals resources to the border. We’re informed that this will involve the U.S. Department of Homeland Security (“DHS”) commissioning of three (3) task forces, consisting of various law enforcement agencies, which will focus on the southern maritime border, the southern land border and West Coast, and investigations to support the other two task forces. The primary objectives of this new strategy is increasing the risk of engaging in or facilitating illegal transnational or cross-border activity, interdicting people who attempt to enter illegally between ports of entry, and preventing the illegal exploitation of legal flows (e.g., alien smuggling at ports of entry).
Aliens Unlawfully Present in the United States. The centerpiece of President Obama’s announcement, and no doubt the most controversial, is to grant deferred action (basically temporary relief from removal) to some aliens who are unlawfully present in the United States (i.e., those who were brought to the United States as children and raised here, or those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”)).
In addition, President Obama expanded a program his administration announced in June 2012, known as Deferred Action for Childhood Arrivals (“DACA”). That program allowed aliens who were unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization. DACA, as originally proposed, expressly excluded aliens who were unlawfully present aliens and who were over 31 years old, or who had entered the United States on or after June 15, 2007. Under President Obama’s recent action, aliens who are over 31 years old, or entered the United States between June 15, 2007, and January 1, 2010, could receive deferred action. The President’s recent initiative would also extend the duration of grants of deferred action (and work authorization) received by DACA beneficiaries from the current two years, to three years.
As noted above, aliens who are unlawfully present in the United States who have children who are U.S. citizens or LPR’s will also be eligible for deferred action (and employment authorization) provided they can show (1) “continuous residence” in the United States since before January 1, 2010, (2) physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they apply for deferred action, (3) not being an enforcement priority under the administration’s newly announced priorities, and (4) they present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. Individuals who are granted deferred action pursuant to the President’s initiatives, or otherwise, are eligible for employment authorization provided they can show “an economic necessity for employment.”
There were other provisions which addressed aliens who are unlawfully present in the United States too, but these are the big ones.
Legal Immigration. The President also announced certain initiatives intended to affect aliens who are lawfully present in the United States, and which was described by the President as supporting high-skilled business and workers. One such provision is to ensure that all immigrant visas (basically “Green Cards”) which are authorized by Congress in a given fiscal year are actually issued.
Yet another initiative that the President announced is expanding the duration of “optional practical training” (“OPT”) available to F-1 nonimmigrant students in the United States studying science, technology, engineering, and mathematics (“STEM”) fields at institutions of higher education in the United States, as well as expanding the actual degree programs that are eligible for OPT.
Again, there were other provisions which the President announced in this category.
I realize the President’s actions are very controversial, and a lot of people are unhappy with them. As I’ve said before, and I’ll say it again, our immigration system is broken and it desperately needs to be fixed. In a perfect world, Congress would pass meaningful, comprehensive and bipartisan legislation, and send it to the President for his signature. That has not happened for way too long. So I suppose this is the next best thing.
Back to School, but Congress Still as Unproductive as Ever
I rec
ently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.
I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?
I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.
When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.
I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”
After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”
What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”
Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?
Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.
The “Gang of Eight” Introduce a Bipartisan Immigration Reform Bill
This morning, the Gang of Eight offered their vision of Comprehensive Immigration Reform. Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation. This is Congress’s starting point for further discussion, debate, no doubt revision, and eventually (hopefully) the signature of President Obama. In a joint statement upon the introduction of the bill, the Senators said:
“Our immigration system is broken and it is time for a national conversation about how to fix it. We believe common-sense immigration reform is vital in order to secure America’s borders, advance our economic growth, and provide fuller access to the American dream. Our bipartisan proposal is a starting point, and will be strengthened by good-faith input and ideas from across the ideological spectrum. We look forward to multiple Senate hearings on this bill, an open committee process with amendments, and a full and fair debate in the Senate.”
I know the topic of immigration and immigration reform invokes deep feelings… both positive and negative, from the general public. People are entitled to their opinions. I have them too. But when I think about these topics, I make myself take off my lawyer hat and try to set aside my political ideology. I try to come at this issue from a very practical point of view. Our immigration system is broken. Is it practical to think that we’re going to deport 11 to 13 million undocumented foreign nationals who are presently in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education… and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken and it is about time that our national leaders, with the input of relevant stakeholders, discuss, debate and implement comprehensive immigration reform.
Very broadly, the Gang of Eight’s bill addresses such important issues such as (a) border security, (b) legalization for individuals in an unlawful status (a so-called “registered provisional immigrant status” where after ten years an individual could apply for lawful permanent residence, i.e., a Green Card, through a merit-based system), (c) elimination of backlogs in the current family- and employment-based immigrant visa categories, (d) the creation of a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies, (e) merit-based visas, where points are awarded to individuals based on their education, employment, length of residence in the U.S. and other considerations, (f) enhanced employment verification rules (i.e., mandatory participation in the E-Verify program, photo-matching, etc.), (g) H-1B nonimmigrant visa reform (e.g., raising the base cap of 65,000 to 110,000, with the potential for the cap to go as high as 180,000, and amending the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. schools, along with several other changes), (i) visa programs for lower-skilled workers, and (j) a program to allow current undocumented farm workers to obtain legal status.
It will take some time for this proposed legislation to be reviewed and digested. Then the debate will begin. The debate will be spirited. Hopefully it will be constructive and not divisive.
Is this proposed legislation perfect? I’ve obviously only skimmed it at this point, but the answer is probably no. Is it a good start? It sure is. More than anything, though, “it’s about time.”
The H-1B Visa Cap : NOT Working for Math, Science and Technology-based Businesses
Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached. They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap. Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.
The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year. This is yet another clear sign that we need comprehensive immigration reform, and soon.
Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company. The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later). I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition. How does anyone run a business with that much uncertainty (or delay for that matter)? And yet that’s the very system that we work within.
Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week. My fingers are crossed.
INSIGHT INTO IMMIGRATION 