Month: October 2017

The Trump Administration continues to make changes adversely affecting processing times and the nimbleness of the United States’ response to businesses’ needs for employees.

Extensions of nonimmigrant (temporary) work visas will be subject to re-adjudication. 

On October 23, 2017, USCIS reversed a policy in place since 2004 that allowed its officials to defer to prior eligibility decisions when adjudicating an employment-based nonimmigrant visa extension request filed by the same employer for the same employee where there were no material changes in the facts of the case. The new policy took effect immediately.

This change will affect all employers filing to extend their H-1B, L-1, or O-1 visa professional and managerial employees’ period of authorized stay.   It will mean that USCIS is essentially conducting new eligibility determinations for visa extension requests, even when the employer, the employee, the type and location of the job, and all other conditions are unchanged since the initial visa petition filed by the employer was scrutinized and approved by USCS.

At best, as a result of this about-face, employers are likely to experience extended delays in obtaining decisions, as well as increased incidence of requests by USCIS for additional evidence regarding visa extension petitions. At worst, the memorandum announcing the policy change will be seen as an invitation by USCIS officials to exercise their discretion to deny extension requests. This new policy will create uncertainty for both the employer and the employee about whether a valued staff person will be able to continue his/her work, in contrast to the prior policy that virtually assured all parties that the employment relationship could continue smoothly if no material conditions had changed in the interval between the initial petition and the extension request.

Why the urgent need for the Dream Act of 2017 (S. 1615, H.R. 3440)?

For the young adults who currently have DACA status , the U.S. is their home.  They have grown up here, have gone to school here, and many of them have no memories of the countries where they were born. A majority of them have U.S. citizen immediate family members, and are our neighbors, classmates, workers, and friends.  In every sense except their birth certificates, they are Americans.   Penalizing them for decisions their parents made for them is inhumane.

Just as important, our economy needs them.   They are educated, ambitious, integrated, English-speaking….. and are entering our workforce at the same time that we need workers to replace our retiring Baby Boom generation.  Nearly 92% of them are working and paying taxes, with over 45% of them doing so while simultaneously attending universities, and 17% of those are pursing graduate degrees.  Those who are not working typically are full time students.

There are several hundred DACA holders in Maine. They range from the full-time university student majoring in a STEM field who also has his own business employing several U.S. workers, to the woman working full-time in shipbuilding while going to college part-time, to the man who has lived in Maine for nearly 20 years, and supports his two U.S. citizen children through his job on a northern Maine farm. As the nation’s oldest state, with a shrinking labor pool as “baby boomers” retire, Maine cannot afford to lose the potential of these young adults.

About 800,000 young adults nationwide have DACA.   That’s 800,000 people who will no longer be eligible to work due to DACA’s termination.  That’s thousands of employers nationwide that will lose employees whom they’ve already invested in training, and who are part of their teams.  It’s future doctors, engineers, architects, teachers, nurses, etc. currently enrolled in universities, who won’t be able to finish their degrees.  It’s also consumers who will no longer have earnings to spend. Beginning March 6, 2018, each day, approximately 1400 DACA holders will lose their DACA status and their permission to work.

The economic costs if there is no fix to this problem are enormous. Those with DACA not only work, but they spend their earnings too, on tuition, consumer goods, and they pay taxes. A recent survey of over 3000 DACA holders found that after obtaining DACA, their average wages increased by 69%. Sixty-five percent of them bought their first cars, and nearly a quarter of DACA holders over age 25 bought their first homes. The U.S. will lose a projected $60 billion in tax revenues, including contributions to Social Security and Medicare, and will experience a $460.3 billion drop in the Gross Domestic Product over a decade if DACA holders lose their legal status. U.S. employers will spend an estimated $6.3 billion in turnover costs to replace their DACA employees.

Forcing DACA youth to leave the U.S. or back into the shadows would not just be cruel, it would be bad for our economy and for the communities of which they are vital members. The Dream Act of 2017, S. 1615, H.R. 3440, has been reintroduced with bipartisan support in Congress. It’s up to Congress to act quickly to pass a clean Dream Act, so that DACA/Dreamers can reach their full potential in the country that is their real home.

 

Interviews required for all employment-based immigrant applications, as of October 2, 2017  

Most noncitizens immigrating through employment are already in the U.S., usually working with professional nonimmigrant (temporary) visas.   Their process of gaining permanent residency typically involves two steps: the employer’s “I-140 petition” that includes evidence of its good faith (but ultimately unsuccessful) effort to find a qualified, available, and willing U.S. worker; and the employee’s application for “adjustment of status” from nonimmigrant to immigrant, contingent upon approval of the employer’s petition. The employee’s spouse and unmarried children under twenty-one can also file to “adjust” if they are in the U.S. with her/him.

For over twenty years, except in a small percentage of cases, “adjustment of status” interviews for employment-based immigrants have been waived. Instead, these applications have been approved once all background and security checks have been completed, based on the documentary evidence included with the I-140 petition and the adjustment application.

Following President Trump’s Executive Order 13780, mandating increased vetting of noncitizens planning to come or immigrate to the U.S., effective October 2, 2017, U.S. Citizenship and Immigration Services (USCIS) began requiring interviews of all employment-based adjustment of status applicants who filed their applications on or after March 6, 2017. Interviews will include spouses and children, although USCIS can waive the presence of children under age fourteen.

Instead of the I-140 petition and adjustment of status application both being adjudicated at one of USCIS’s Service Centers, the paperwork will be filed there, and later be transferred to the USCIS office nearest to the employee’s residence.  That office will interview the employee and decide whether or not to approve the adjustment of status application.  USCIS says that the local USCIS office should not re-adjudicate the I-140 petition, but will examine all the evidence submitted with it to determine its “credibility”.

This change means two things: immigrants through employment will now face delays because of the need for an in-person interview, and they will need to involve their immigration attorney to prepare for and attend the interview, increasing the cost of the process.  Fortunately, in Maine, the local USCIS office in Portland does not have exceedingly long backlogs for interviews.   Nonetheless, the interview requirement can be expected to add several months to the process.