Month: July 2017

As noted by MeBIC previously , the 33,000 nationwide cap for summer seasonal H-2B worker visas was reached in March. This was two months earlier than the prior year, and shut many Maine employers in the hospitality sector out from getting the workers many have relied on for years to handle the surge in summer and “leaf-peeping” tourism.

In May, Congress included language in an appropriations bill that would have allowed the issuance of up to nearly 90,000 additional H-2B visas per year, as MeBIC discussed in this post.  On July 19, 2017, the Departments of Homeland Security and Labor issued a final rule implementing the new law, but authorized only an additional 15,000 H-2B visas for the current fiscal year ending on September 30, 2017.

Coupled with a new requirement imposed by Congress that employers attest that they will suffer irreparable, permanent, harm should they not get the temporary H-2B workers they need, among other requirements, DHS and DOL’s rule is too little, too late to help Maine’s summer seasonal non-agricultural employers this year.

On June 26, 2017, the U.S. Supreme Court agreed to hear the Federal Government’s appeal of the federal court decisions enjoining sections of the Administration’s March 6, 2017 Executive Order (E.O.). That E.O. suspended entry for an initial period of 90 days of citizens or nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, as well as for 120 days of refugees, and capped refugee admissions for the current fiscal year at 50,000.

The Supreme Court will hear the appeal in its next term that begins in October 2017.

The Supreme Court also narrowed the scope of the lower courts’ injunctions, allowing the government to implement the E.O. against persons from the six named countries or refugees who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court gave only brief guidance about how those relationships should be defined, creating much confusion. The E.O. took effect on June 29, 2017, and the government construed those exempted from the travel and refugee bans very restrictively.

On July 13, 2017, the Federal District Court of Hawai’i ruled that the government’s definition was too narrow, and expanded the classes of persons the government to whom could not apply the E.O.   That decision was then appealed as too broad, resulting in a Supreme Court clarification on July 19, 2017.  As a result of the various court rulings, the E.O cannot be enforced against people from the six countries or refugees who:

• are parents, parents-in-law, spouses, fiancé(e)s, children, adult sons or daughters, sons or daughters-in-law, whole or half-siblings, step-relatives by marriage, grandparents, grandchildren, brothers or sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons already in the U.S.;
• have a bona fide relationship with a U.S. entity that is “formal, documented, and formed in the ordinary course”, including those with job offers from U.S. employers. The Supreme Court specifically gave additional examples such as students accepted to attend, or those coming to speak or lecture at,  U.S. universities.  Presumably people from the six countries who intend to attend meetings with a business with which they have a documented relationship, would be able to apply for a visa or entry.

Individuals from any of the six countries who have dual nationality may be exempted from the E.O. travel ban if they travel on their passport issued by the non-targeted country. The E.O. also does not apply to those who already have permanent residency or refugee or asylee status in the U.S., or who were issued visas prior to the June 26th Supreme Court decision.

As a practical matter, the U.S. consulates are denying visas to many people from the six countries who may well have gotten visas in prior years, regardless of the various court decisions. There is no appeal from a denial of a U.S. visa, though reconsideration may be requested.

As a result of the travel ban and the uncertainty surrounding U.S. visa policy under the current administration, many individuals are choosing not to pursue work or study opportunities in the U.S.   Eventually there may be measurable negative economic consequences from the new policies.

Immigrants have a centuries-long track record of entrepreneurial activity in the U.S. More than half of all U.S. start-ups of at least $1 billion in value had at least one immigrant cofounder, according to a 2016 study.  This holds true as well for over 40% of Fortune 500 firms who have at least one immigrant or a child of immigrants founder. Immigrant entrepreneurs are the backbone of a vibrant U.S. economy.

Unfortunately, the nation’s outdated immigration laws do not provide adequate avenues for immigrant entrepreneurs at the start-up stage. This shuts out not only entrepreneurs living abroad, but also foreign students who have attained advanced degrees, often in STEM fields, at U.S. universities, who want to innovate here rather than in their home countries.

Following repeated unsuccessful attempts to get meaningful immigration reform through Congress, the prior Administration crafted a new International Entrepreneur Rule (IER) to allow use of an existing program called “parole” as a vehicle through which international entrepreneurs could gain temporary legal status in the U.S. to launch new enterprises, on a case-by-case basis, if they met certain investment and other criteria. If their launch efforts were successful, they might later obtain permanent legal status under existing immigration laws.  The IER was scheduled to take effect on July 17, 2017.

On July 11, 2017, the new Administration published a final rule delaying implementation of the IER until March 14, 2018, and expressing its intent to rescind the IER altogether, following a notice and comment period ending Aug. 10, 2017.

Many organizations and individuals concerned with the economy expressed their disagreement with the new Administration’s stance, including the National Venture Capital Association,  and the Consumer Technology Association.

Rescission of the IER, absent Congressional action to dramatically improve our federal immigration statutes, will result in the U.S. losing talented entrepreneurs and job creators to other countries.