Mike E. Stroster Kevin D. Battle

Transcription

1 Mike E. Stroster Kevin D. Battle The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer Miller Johnson. All rights reserved. 1

2 Immigration Reform What it means for employers Increased Enforcement ICE/FDNS audits H-1B scrutiny DACA DREAM ACT SUCCEED ACT Travel Ban Future Predictions 4 A nation without borders is not a nation. There must be a wall across the southern border. A nation without laws is not a nation. Laws passed in accordance with our Constitution must be enforced. A nation that does not serve its own citizens is not a nation. Any immigration plan must improve jobs, wages, and security for all Americans Miller Johnson. All rights reserved. 2

3 Increased emphasis on buying American and hiring American Executive Order It shall be the policy of the executive branch to buy American and hire American Decreased access to skilled professionals H-1B quota/cap for fiscal year 2018 hit the first week of April 2017 No new H-1B visas available for cap subject employers until October 2018 Random lottery selection 6 Increased scrutiny of non-immigrant and immigrant petitions Slower processing timelines Increase in auditing Premium processing suspension Miller Johnson. All rights reserved. 3

4 8 Increased emphasis on securing our borders and enforcing current immigration laws John Kelly issued two memos providing further direction on President Trump s executive orders Additional 5,000 border patrol agents 10,000 new ICE officials Estimated that ICE Homeland Security audits will triple Miller Johnson. All rights reserved. 4

5 United States Citizenship and Immigration Services Fraud Detection and National Security Directorate United States Customs and Border Protection United States Immigration and Customs Enforcement 10 ICE and FDNS target ALL employers, not just employers of a certain size, industry, or geographic location Miller Johnson. All rights reserved. 5

6 USCIS announcement of new targeted approach to combat H-1B fraud and abuse Increased visits by FDNS agents Random and unannounced worksite visits Interviews of supervisor, review of public access file, interviews of H-1B applicant Created a tip line for individuals to report violations by employers Emphasis on H-1B dependent employers, employers with H-1B employees who work off-site or have onsite contractors 12 ICE has announced a general increase in its enforcement actions and more frequent ICE audits Increase in audits of Form I-9 August 1, 2016 Penalties increased to up to $2,156 for I-9 paperwork violations and between $539 to $21,563 for knowingly employing an individual without work authorization New Form I Miller Johnson. All rights reserved. 6

7 September 28, 2017 ICE arrested 498 individuals from 42 different countries in a four day operation August 3, 2017 ICE arrested 33 individuals after a four day operation in West Michigan fox17online.com/2017/08/04/ice-arrests-33-people-during-operation-in-west-michigan/ 14 Increased scrutiny of applications for skilled foreign workers Between January 1, 2017 and August 31, 2017, USCIS has issued 85,000 requests for evidence to H-1B petitions. 45% increase In 2016, USCIS approved 87% of H-1B petitions. Through June 30, 2017, 58% of H-1B petitions are approved Miller Johnson. All rights reserved. 7

8 Targeting entry-level jobs offered to skilled foreign workers Job salary should be higher because job is too complex or job does not count as specialty occupation Aimed at ensuring visas are awarded to the mostskilled or highest paid Request increased legal fees and processing time 16 Starting October 8, 2017, the Department of Homeland Security will start collecting social media information from all immigrants entering the U.S. Green card holders and naturalized citizens will also have their social media information collected Information will be collected as part of an individual's immigration file Unclear at this point whether monitoring will take place only during the application process or continue afterward Miller Johnson. All rights reserved. 8

9 Effective October 1, 2017, attorneys will no longer be allowed to represent clients in person at the border CBP Officers may accept telephone calls from attorneys but may not be willing to discuss individual cases No specific guidance available yet Miller Johnson. All rights reserved. 9

10 DACA applications could be filed for individuals presently in the U.S. without a valid immigration status to gain deferred action (assurance from deportation or removal efforts would not occur) provided certain criteria were met. 20 DACA applications criteria: Under age 31 as of June 15, 2012 Arrived in the U.S. before age 16 Continuously in the U.S. since June 15, 2007 At the time of the deferred action, the applicant was in school, graduated from high school, obtained a GED, or honorably discharged from the U.S. military No felony or significant misdemeanor, nor three or more minor misdemeanors Miller Johnson. All rights reserved. 10

11 Foreign nationals granted DACA were provided deferred action for up to two years Foreign nationals requesting employment authorization and approval for deferred action, upon showing economic need, were issued an Employment Authorization Document 22 On September 5, 2017, at the direction of President Trump, DHS Acting Secretary Elaine Duke issued a policy memo officially rescinding DACA Miller Johnson. All rights reserved. 11

12 USCIS will adjudicate DACA applications for work authorization that were accepted by the USCIS as of September 5, 2017 Renewal applications accepted by USCIS through October 5, 2017, for applicants whose benefits expire between September 5, 2017 and March 5, Employees who currently have DACA are permitted to continue working until their EAD expires, is terminated, or revoked Any foreign national who does not possess a valid work authorizing visa, who does not currently have DACA, or who did not file a DACA application before September 5, 2017 or October 5, 2017, is not permitted to work in the U.S Miller Johnson. All rights reserved. 12

13 Bipartisan bill introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Jeff Flake (R- AZ), and Chuck Schumer (D-NY) Stay the removal proceedings and grant conditional permanent residence to a person inadmissible or deportable who: Has been continuously physically present in the U.S. for four years preceding the date of the enactment Was 17 years old or younger on the initial date of entry into the U.S. Is not inadmissible due to criminal, security and terrorism, smuggling, or student visa abuse 26 Has been admitted to an institution of higher education, has graduated from high school or obtained a GED or a high school equivalency diploma, or is enrolled in secondary school or in an education program assisting students in obtaining a high school diploma or in passing a GED or equivalent exam Permit conditional permanent residents to obtain lawful permanent resident (LPR) status if they go to college, have worked for a certain amount of time, or served in the U.S. military Provide a pathway to U.S. citizenship Stay (stop) the removal proceedings of anyone who meets the Dream Act requirements and young people over five years of age who are enrolled in school Miller Johnson. All rights reserved. 13

14 Five-year conditional permanent resident status Establish that they came to the U.S. before the age of 16 and have continuously lived in the U.S. since at least June 15, 2012 Demonstrate that on June 15, 2012, they were younger than 31 years old and had no lawful status in the U.S. Pass several government background checks; demonstrate good moral character with no felonies, significant misdemeanors or multiple convictions If younger than 18, enrolled in school If 18 and older, earned high school diploma or an equivalent; have been admitted to an institution of higher education; or have served, be serving, or have enlisted in the U.S. military Sign a conditional departure (18 years or older) 28 Conditional permanent resident status can be extended for a second period of five years by meeting one of the following requirements in the initial five-year period: Have graduated from an institution of higher education or completed at least eight semesters; Have served in the military or a reserve component of the military for at least three years; Have been employed for a total period of at least 48 months; or Have attended institution of higher education, served in military or a reserve component of the military, or been employed for a cumulative period of at least 48 months Miller Johnson. All rights reserved. 14

15 A recipient who has been a conditional permanent resident for 10 years could apply to become a lawful permanent resident if they continue to meet the bill s requirements Miller Johnson. All rights reserved. 15

16 Outside the U.S. on the applicable effective date 12:01 a.m. on October 18, 2017 Do not have a valid visa on the applicable effective date Do not qualify for a visa or other valid travel document (based on a revoked visa or cancelled visa due to the first executive order) 32 Chad Libya Iran North Korea Somalia Syria Venezuela Yemen Miller Johnson. All rights reserved. 16

17 Chad, Libya, and Yemen: All immigrants and those entering as tourists or business travelers Iran: All immigrants and nonimmigrants, EXCEPT F, J, and M visa holders (extra scrutiny) North Korea and Syria: All immigrants and nonimmigrants Somalia: Immigrants (and nonimmigrants subject to additional scrutiny) Venezuela: Certain government officials and their family members 34 Lawful permanent residents Dual nationals Those granted asylum, admitted as a refugee, or granted withholding of removal Those traveling on diplomatic or similar visa Those in the U.S. on the effective date Those who had a valid visa on the effective date Miller Johnson. All rights reserved. 17

18 Denying entry would cause the foreign national undue hardship; Entry would not pose a threat to national security or public safety; and Would be in the national interest of the U.S. *10 examples Miller Johnson. All rights reserved. 18

19 New administration seeks to eliminate H-1B random lottery system Most skilled and highest paid workers receiving visas Last year, applicants had a 36% chance of being selected in the random lottery Potential minimum salary requirement for H-1B visas Preference for students educated in the U.S. 38 No current executive action regarding TN visas Renegotiating the North American Free Trade Agreement (NAFTA) Added emphasis on securing our borders Increased scrutiny at border Miller Johnson. All rights reserved. 19

20 Reforming American Immigration for a Strong Economy Act Cut legal immigration to the U.S. by 50 percent over a 10 year period Merit-based immigration system Give visa preference only to immediate family Eliminate diversity lottery 40 Nearly 790,000 young unauthorized immigrants have received relief through DACA Pressure from companies employing DREAMERS White House current stance is any bill for DREAMERS must contain funding of Wall Miller Johnson. All rights reserved. 20

21 Michael E. Stroster Kevin D. Battle millerjohnson.com 45 Ottawa Ave SW Suite 1100 Grand Rapids, MI W Michigan Ave Suite 200 Kalamazoo, MI Miller Johnson. All rights reserved. 21