Month: August 2018

On August 31, 2018, a federal judge in Texas refused to grant a preliminary injunction halting the Deferred Action for Childhood Arrivals (DACA) program while it considers a challenge to its legality by several states.

Previously, three other federal courts found that the administration’s rescission of the DACA program was unlawful, and ordered the government to continue to process DACA renewal applications (but not new applications by those applying for the first time).

The Texas federal court’s decision avoids a conflict between the courts that would have put in immediate jeopardy DACA holders’ ability to renew and maintain their lawful presence and work permits, and their ability to continue working and attending school and contributing to our communities.

In his order, the federal judge made it clear that he believes the DACA program is unlawful, but also found that the suing states did not merit a preliminary injunction while the case proceeds to trial.  He stayed further action on the case for 21 days to allow either party to appeal.

This decision gives DACA holders some room to continue filing DACA renewal applications, but again underscores that the courts are not the path to permanent status for those with DACA.

With the August Congressional recess about to end, Congress and the Administration need to get back to work and create that path for the over 700,000 DACA holders who are integral members this country.

 

The Center for Economic Studies, a component of the U.S. Census Bureau, released an August 2018 report examining discrepancies when collecting citizenship data via various survey-based or administrative records.

This report comes on the heels of the U.S. Department of Commerce’s proposal to add a  question about citizenship status to the 2020 decennial status.   As explained in more detail here , adding that question is certain to result in an undercount of the U.S. population, contrary to the census’s purpose to count everyone in the U.S regardless of status.

The report’s timely takeaway:

The evidence in this paper also suggests that adding a citizenship question to the 2020 Census would lead to lower self-response rates in households potentially containing noncitizens, resulting in higher fieldwork costs and a lower-quality population count.

The Commerce Department received nearly 79,000 comments concerning how it plans to conduct the 2020 Census, and litigation is ongoing challenging the addition of the citizenship question to the 2020 Census.   Hopefully appropriate weight will be given to the conclusions of the Census Bureau’s own staff in the new report.

On July 19, 2018, the Department of Homeland Security announced that it will extend Temporary Protected Status (TPS)  through March 17, 2020 for Somalis whose current TPS will expire on September 17, 2018.

The reregistration period for eligible Somalis runs from August 27 to October 26, 2018.  Their work permits are automatically extended through March 17, 2019.   Employers must accept a copy of eligible Somalis’ current work permits plus a copy of the Federal Register notice to update their I-9 forms during the USCIS adjudication process.

TPS is offered to citizens of countries that the U.S. deems unsafe due to natural disasters or wars and civil conflict, so that those already in the U.S. when the Administration designates their country for TPS can apply to remain and work here legally.  It is typically offered in 18 month increments, and has often been extended repeatedly.  For example, Somalia has been designated for TPS since 1991.

The Administration’s willingness to renew Somali TPS stands in contrast to its decisions over the past year to end TPS for individuals from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.   While the Administration estimates that about 500 current Somali TPS beneficiaries will be able to extend their TPS, over 300,000 citizens of the countries named above will lose legal status and the ability to work and contribute to our communities and our economy when their current TPS ends, as MeBIC has noted previously.

The Business Roundtable is a coalition of CEOs of leading U.S. companies, including Apple, Bank of America, Coca-Cola, IBM, JP Morgan Chase, Mastercard, PepsiCo, Texas Instruments, Visa, and Tyson Foods, parent company of MeBIC Partner Barber Foods.

In an August 22, 2018 letter to Department of Homeland Security Secretary Kirstjen Nielsen, over fifty CEOs of the Business Roundtable expressed their “serious concern”  about policy changes undertaken by the current administration that “inflict substantial harm on U.S. competitiveness.” (Emphasis added.)

As examples, they point to arbitrary changes to the adjudications process of employment-based petitions, plans to take away work permits from tens of thousands of spouses of H-1B professional workers who are on the wait list for permanent residency,  about-faces on long-standing legal interpretations that will put  higher education international students and other workers at risk of becoming out of status and having to leave the U.S., among others.

The letter notes that the many changes are causing their employees considerable anxiety, threaten to disrupt company operations, and “will likely cause high-skilled immigrants to take their skills to competitors outside the United States.”

Let us hope the Administration listens.   Read the letter here.

In a court filing on August 20, 2018, the Administration affirmed that it still intends to revoke a rule allowing spouses of H-1B visa holders who have been found eligible to immigrate but are on the wait list for residency, to get work permits.

As explained in this prior post, if these spouses cannot work during the many years it can take to immigrate, their talent and contributions to the U.S. economy will be sidelined, in some cases for decades .  The tens of thousands of H-4 spouses who currently have work permits under the existing law will need to leave their jobs, to their employers’ detriment.  And as one H-4 visa holder currently with work permission eloquently explained, eliminating H-4 spouses’ ability to work may cause the entire family to choose to emigrate from the U.S. to live  in a different country where both spouses have the opportunity to work.

Once published, there will be a required notice and comment period when the public can register opposition to this rule change.  Maine businesses that would like more information or assistance in submitting comments should contact MeBIC.

As noted in our prior update,  after separating over 2600 children from their parents who brought them here seeking safety, the government failed to meet a court deadline to reunite all of the youngest children (under 5 years old) with their parents.   The government later failed to meet the deadline to reunite all of the older children (aged 5 to 17).    Approximately 565 children, including 25 children under age 5, are still being held by the government.

Many parents signed away their legal rights when government officials told them that they would be reunited with their children more quickly that way.  The parents were then deported without their children,  366 of whom are still here in government custody, according to this August 17, 2018 status update filed with the court.  Many of these children are at real risk of gang recruitment and deadly gang violence and have independent claims for asylum.  However, lawyers are having to fight in court to preserve that right as the government dangles reunification with their parents in front of them if they waive their legal right to request asylum.

For details on where the litigation and family reunification efforts stand right now, read this update by the ACLU, who represent the plaintiffs in the federal action seeking to reunite the impacted parents and children.  The ACLU and the Government will be back in court on August 24th.

 

Update:  As of August 21st, 2018, zero additional refugees have been resettled in Maine since first publishing this post on July 31st.   The number still stands at only 65 refugees, with barely one month remaining in the fiscal year.

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Refugees have been a reliable and constant source of in-migration to Maine since the Refugee Act of 1980’s passage.  In FY 2016, the U.S. admitted nearly 85,000 refugees, about 650 of whom were resettled in Maine.

At the end of 2016, the number of refugees worldwide was an estimated 22.5 million. One year later, that number had increased to an estimated 25.4 million refugees.

Yet at a time of record high global refugee numbers, for FY 2018, the administration set the U.S. refugee admissions ceiling at 45,000, the lowest in nearly 40 years.  In actuality, due to the “Refugee Ban” and increased hurdles for U.S. refugee visa issuance, the U.S. is on track to admit fewer than half that number.   In a July 17, 2018 letter expressing concern to the Secretaries of the Departments of Homeland Security and State, a bipartisan group of 63 Congressional representatives (including Maine’s Rep. Chellie Pingree) noted that only 16,429 refugees had been resettled in the U.S. as of July 9, 2018.

As the Cato Institute notes when proposing that the U.S. should accept more, not fewer refugees, from 2012 through 2017 new refugees and asylees represented only 0.2% of the U.S. population.  This ranks the U.S. at 50^th in the world in the number of refugees accepted as a share of the receiving country’s population, even when including the far higher refugee numbers accepted under the prior administration.  With our nation’s birth rate falling to its lowest in thirty years, and with “baby boomers” retiring, the U.S. can certainly afford to take a larger role in resettling the world’s refugees.

In Maine, as of July 31^st, only 65 refugees have been resettled, a mere 10% of the number two years ago.   With only two months left in the fiscal year,  resettlement staff in Maine doubt that even 90 refugees will be resettled here this year.

As the 2018 Making Maine Work report published this month made clear, growing Maine’s workforce is vital for Maine’s economy, and immigrants are an essential component of that growth.   Federal actions dramatically reducing refugee admissions to the U.S. and Maine not only undermine our nation’s values, but also harm our economy.

 

 

 

The Trump administration has made no secret of wanting to drastically cut immediate family immigration to the U.S.   In 2017, President Trump threw his support behind the RAISE Act, despite the fact that had such a law then been in place, his own mother, grandfather, and wife’s parents would not have been able to immigrate to the U.S.   Later, he refused to support a bipartisan proposal creating a path to permanent residency for DACA holders in part because it did not cut immediate family immigration.   The administration maintains that family-based immigrants are less capable of contributing to the U.S. economy than employment-based immigrants, despite centuries of contrary evidence .

Now, the Administration is on the cusp of bypassing Congress and deploying a change in regulations as its vehicle to cut immediate family immigration.

A draft proposed rule expected imminently would dramatically change how the “public charge” ground of inadmissibility is applied, with the result that immediate family immigrants who are not middle class or wealthy are likely to be denied residency.   This will harm U.S. citizens and permanent residents (LPR) who petition for their immediate relatives’ residency.   It will also strike a blow at  our communities and our economy, which increasingly needs immigrants to help shore up our shrinking labor force.  (The rule change would also apply to nonimmigrants applying to extend or change their temporary visas, but the practical impact there is likely to be minimal).

• What is the “public charge” ground of inadmissibility and how has it been applied to date?

With exceptions for refugees and some other particularly vulnerable classes of people, intending immigrants to the U.S. must prove that they are unlikely to become a “public charge” after obtaining residency.  This is one of the nation’s oldest immigration laws, dating to the late 1800’s.

In assessing whether a person is likely to become a public charge, the government has historically looked at whether the person appears to be healthy, already has a history of working and/or seems willing to work in the future, and can consider the person’s age, education, skills, family supports, as well as her/his assets or other financial resources.   In 1996, Congress added a requirement for family-based immigrants that became the determinant factor – an “affidavit of support” from the petitioning U.S. citizen or LPR immediate family member showing the petitioner’s ability to support the new immigrant with an income of at least 125% of the federal poverty level for the household size. Typically, as long as a family-based immigrant has the required affidavit of support, s/he is approved for residency.

• What would the proposed rule change do?

The draft proposed rule would make the family affidavit of support a mere threshold, triggering close and harsh scrutiny of the intending immigrant.  The administration estimates that annually, 257,610 immediate family immigrants already in the U.S. when applying for LPR status will be subject to the rule change.

In the 200 page preamble to the 20 page draft proposed rule change, the administration discusses factors that will weigh heavily against any prospective LPR, despite her/his petitioning  U.S. citizen or LPR immediate family member’s affidavit of support.  Applicants may be denied residency if they:

– have accompanying children under age 18, or if they themselves are under 18 or over 61;

– do not already speak English at least “very well,” or do not have higher education;

–  are not currently working (even if they have preschool age children and are stay-at-home parents, and have a prior work history);

–  have a health condition and do not have “nonsubsidized” health insurance;

–  do not have at least a “fair” credit score or can’t prove a history of paying bills on time;

–  have lived in a household where they or their U.S. citizen family member(s), for example their children or their petitioning spouse, have received any public benefits.  Under current law, only cash benefits are considered.  Under the draft proposed rule, the government would also include income supports such as the Child Tax Credit and the Earned Income Tax Credit (widely considered as highly effective anti-poverty measures for low-income working families), ACA health insurance subsidies, heating assistance (LIHEAP), and Food Stamps (SNAP), among many others.

The only factor that will be weighed heavily in an intending immigrant’s favor is if s/he has income that exceeds 250% of the annual federal poverty guidelines (in 2018, that would be an income of at least $62,750 for a family of four).  The Migration Policy Institute reports that 2.3 million, or 56%, of immediate family members who immigrated in the past 5 years live in families whose incomes would not meet that threshold.

• What would the impact of this rule change be?

In the proposed rule’s preamble, the government acknowledges the damage this rule is likely to cause, stating that:

the proposed regulatory action, if finalized, may increase the number of aliens found inadmissible….

Applicants for residency who are inadmissible are denied residency and in most cases then become deportable from the U.S., causing immeasurable harm to the affected family.

The government also notes that

the action has the potential to erode family stability and decrease disposable income of families and children because the action provides a strong disincentive for the receipt or use of public benefits by aliens, as well as their household members, including U.S. children. (Emphasis added).

In the preamble, the government notes that the harm the rule change will cause is worth it, because it alleges immigrants cost the country too much by their benefits use.   However, multiple studies have found that immigrants contribute more than they cost in public benefits, studies that the government ignores, as a commentary by the Cato Institute recently noted.

To be clear – since 1996, new immigrants have been barred from receiving federal non-emergency public benefits for their first five years as LPRs.   It is U.S. citizen children and their petitioning parent in “working poor” families whom this rule change will harm.

For example,  in FY 2018, a U.S. citizen with three U.S. citizen children who is working full-time at $15.35 per hour has a low enough income to qualify for federal food stamps  (SNAP).   However, when the immigrant spouse applies for residency, under the proposed draft rule, the government could deny the residency application if the children receive SNAP benefits.  This is despite the fact that as an LPR, the new immigrant would become eligible to work and to substantially increase the family’s income, decreasing or eliminating the family’s need for assistance.  (Often the immigrating spouse is undocumented and legally unable to work until obtaining residency).

Already, having heard rumors of the proposed rule, U.S. citizens reportedly are foregoing income supports that would help keep them and their children healthy because of fears that their immigrating relative will be denied residency.  And were the draft proposed rule to take effect, even in households that receive no public benefits, stay-at-home immigrant parents who provide childcare and are not working, or who speak limited English, or who have not gone to college, will likely be denied residency.

At a time when the U.S. economy is strong and unemployment is low, we need new immigrants at all skill and education levels keep our communities vibrant and to power our economy.   This draft proposed rule’s clear intention to  dramatically reduce immediate family immigration to the U.S. will penalize lower income individuals by depriving them of the family unity that our immigration system and our nation have long valued and prioritized.  It will also make U.S. citizen and LPRs afraid to access programs that help keep their families healthy and safe. And it will harm our economy by depressing immigration levels and reducing the income and consumption potential made possible when an immediate family can be together and be comprised of new wage-earning LPRs.

As this Bloomberg editorial notes, this draft proposed rule is bad for families and bad for the economy. Once published, the government must accept public comment on the rule. Contact MeBIC if you are a Maine business and would like to submit comments opposing the rule change.

 

 

 

 

Update:  The Business Roundtable, comprised of CEOs from some of the nation’s largest and most influential companies, sent a letter on August 22, 2018 to Department of Homeland Security Secretary Kirstjen Nielson outlining the damage that the Administration’s various policy changes are causing employers and the U.S. economy.  Changes in adjudication practices such as those noted below are just one of the many that the letter notes. Read the letter here.

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The National Foundation for American Policy (NFAP) has released a report highlighting a dramatic increase in the number of denials, and requests for evidence (RFEs) that delay adjudication, of petitions for extraordinary ability, professional level. and specialty occupation foreign workers under the Trump Administration.

Looking at FY 2017 government data (October 1, 2016 – September 30, 2017), the NFAP found that the increase in denials and RFEs for H-1B professional specialty occupation workers spiked in the 4th quarter of FY 2017, shortly after President Trump issued his Buy American and Hire American Executive order.   In that quarter, the number of H-1B RFEs was nearly equal to the total number of RFEs issued in the first three quarters of FY 2017.  Indeed, the NFAP noted that 69% of H-1B petitions considered in Q4 of FY2017 received RFEs, compared to 17% in Q1, the last quarter under the Obama administration.  And RFEs relating to H-1B petitions filed on behalf of Indian citizens were notably higher than for those filed for citizens of other countries.  Similar marked increases of outright denials of petitions were noted in the 4th quarter, with Indian citizens bearing the largest brunt.

The increase in H-1B denials and RFE’s is perhaps unsurprising, given other changes that this administration has undertaken, such as no longer deferring to a prior USCIS approval when an employer applies for an extension of the exact same worker for the exact same job, as had been long-standing practice.

The NFAP report also found increases in RFEs and denials of petitions, particularly for Indian citizens, for L-1 intracompany transferees, and for O-1 “extraordinary ability workers” in FY 2017.

The increase in RFEs continued in the first two quarters of FY 2018, according to the NFAP, indicating that the FY 2017 numbers were likely the start of a trend, not a blip.

The upshot of the increase in RFEs is delay and uncertainty for both employers and foreign born workers, even if the visa petitions are ultimately approved after the the government receives and considers the additional evidence.   Denials obviously mean that the employer will not be able to employ the employee.   The Society of Human Resource Management has noted the increasing difficulty that these changes are causing employers in their talent acquisition efforts nationwide.

As the NFAP’s director points out in this Forbes commentary, economists have noted the positive effects that foreign born STEM employees in particular bring to the U.S. economy, and the wage growth of native born employees that results from importation of H-1B workers.  Administration efforts to effectively shrink the number of foreign born professional workers in the country are misguided.

These delays and denials are part of a series of barriers that the Administration has been imposing that make it harder for U.S. employers to get the talent that they need, regardless of where they were born. .   The full effects on our economy have not yet been felt, but without a course correction from this administration, they will be. 

Read the full NFAP report here.

 

This update on the fate of the Deferred Action for Childhood Arrivals (DACA) program follows our more detailed update found  here.

Following oral argument on August 8th in the federal district court in Texas in the case filed by several states challenging DACA’s legality (Texas et al. v. Nielsen et al.), the judge ordered written arguments from the parties.  A decision is expected imminently.

In the meantime, in the case in the D.C. federal district court challenging the legality of the administration’s rescission of the DACA program ( NAACP v. Trump et al.), the government asked for a stay, during the appeals process, of the judge’s order requiring that it resume processing DACA applications from first-time applicants.  Without a stay, USCIS would have to begin accepting applications from new DACA applicants on August 23rd.  On August 15th, the plaintiffs notified the judge that they do not object to the government’s request for a stay.

This decision by the plaintiffs may be aimed in large part at the Texas case, since the states had argued in part that adding new DACA recipients to their populations would harm them, despite ample anecdotal and empirical evidence of the economic and  social contributions that those with DACA are making, as many Texas business associations highlighted in their brief to the court.

Meanwhile, DACA holders still don’t know what their future holds.  Stay tuned……

 

On July 5, 2018, the Department of Homeland Security announced that it will extend Temporary Protected Status (TPS) through March 3, 2020 for nationals of Yemen whose current TPS is due to expire on September 3, 2018.

Eligible Yemenis must file their reregistration applications between August 14, 2018 and October 15, 2018.  Their work permits  are automatically extended through March 2, 2019.   Employers must accept a copy of eligible Yemenis’ current work permits plus a copy of the Federal Register notice to update their I-9 forms during the USCIS adjudication process.

TPS is offered to citizens of countries that our government deems unsafe due to natural disasters or wars and civil conflict, so that those already in the U.S. when the Administration designates their country for TPS can apply to remain and work here legally.  It is typically offered in 18 month increments, and has often been extended repeatedly.  For example, Somalia has been designated for TPS since the early 1990s.

The Administration’s willingness to renew Yemeni TPS stands in contrast to its decisions over the past year to end TPS for individuals from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.   While the Administration estimates that about 1250 current Yemeni TPS beneficiaries will be able to extend their TPS, over 300,000 citizens of the countries named above will lose legal status and the ability to work and contribute to our communities and our economy when their current TPS ends, as MeBIC has noted previously.

 

As we have highlighted previously, the Administration is not just engaging in harmful and headline grabbing actions at the U.S. southern border, but is also taking steps targeting professional level and other immigrants essential to the strength of the U.S. economy.

This recent Wall Street Journal column highlights some of the lesser known actions taken daily in the administration of our immigration laws that is resulting in employers losing talented employees, and in some cases, leading to decisions to take their operations to other countries.

Update:  On July 30, 2018, USCIS delayed implementation of its new NTA policy, discussed below, while it develops operational guidance.   The new policy expanding USCIS’s authority to deny incomplete applications is still slated to go into effect on September 11, 2018, however.

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In 2002, Congress divided the former Immigration and Naturalization Service into three parts with separate missions.   Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) were charged with border and interior enforcement, and U.S. Citizenship and Immigration Services (USCIS) was to provide services to citizens and noncitizens alike, including offering information and processing applications for work permits, nonimmigrant visas or other temporary statuses, permanent residency, and U.S. citizenship.

Recent policy changes by the current administration are subverting USCIS’s service role and turning it into an enforcement agency.

• USCIS is given green light to initiate removal proceedings.

On June 28, 2018, USCIS issued a policy change broadening when it will issue a Notice to Appear (NTA), the document that initiates proceedings to remove a person from the U.S.   In the past, if USCIS denied an application for an immigration benefit, it ordinarily would refer the case to ICE to determine if NTA issuance was warranted. USCIS itself only issued the NTA in very limited circumstances, such as if it deemed the application to be fraudulent, or that the applicant had criminal convictions or presented a security risk.

Under the new policy, USCIS can issue an NTA against any person who is out of status when it denies a petition.  For example, the visa of an H-1B professional who timely filed for an extension may expire during the time it takes USCIS to decide the application, due to long processing backlogs. Prior to the new policy, if the extension were denied, the former H-1B professional could leave the U.S. and apply for a new visa from abroad.  Under the new policy, s/he could not leave without first appearing before an immigration judge.   Nationwide, the immigration courts are buckling under the strain of over 700,000 pending cases, with it taking years to get a hearing. The denied H-1B worker is required to wait for a hearing before being able to leave the U.S., but will not have legal permission to work during that wait.

For a more detailed discussion of how harmful this new policy will be in practice, read this piece in Forbes.

• USCIS has new authority to deny applications that are not 100% complete when filed.

Immigration is extremely complex. It is not uncommon for someone to omit a required document when filing an application with USCIS, such as a submitting a foreign language birth certificate without also including a properly certified translation of it into English.

Under long standing policy, ordinarily if any required documents are missing from an application,  USCIS will send the applicant a Request for Evidence (RFE).  In cases where it appears to USCIS that the person is not eligible for the benefit sought,  the agency will issue a notice of intent to deny the application, giving the applicant 30 days to respond.

On July 13, 2018, USCIS announced a new policy, to take effect on September 11, 2018, authorizing USCIS to simply deny incomplete applications in most cases.   Applicants will no longer have a chance to supplement their applications. Not only would they lose their application filing fees if they have to start all over, but if they are then out of status, for example because their visa expired between the time they filed their application and USCIS issued its denial, they in most cases will be ineligible to simply refile a corrected application.   Moreover,  coupled with the new NTA policy discussed above, USCIS can initiate removal proceedings against the individual along with its denial.

What is the impact of these policy changes?

These changes take direct aim at those trying to follow the law and obtain immigration benefits legally.  It is extremely likely that many noncitizens already working for U.S. employers who are filing to extend their temporary work visas or to apply for permanent residency will have their applications derailed as a result of these two policies, resulting in losing their ability to work and being subjected to prolonged, complicated, and prejudicial removal proceedings.  Those seeking residency through immediate family members or naturalization also will be adversely affected.

Immigration law is extremely complex, and it is easy for a person to be out of status.  Some examples include: a student visa holder who drops below a full course load for one trimester; a person who files for an extension of stay whose visa expires while that application is pending; a  temporary worker who falls in love with and marries a U.S. citizen and remains in the U.S. after the seasonal work ends in order to file for residency based on the marriage. Under the new policies, all of these individuals, if they file incomplete applications, would now have their applications denied outright, resulting in USCIS issuing an NTA placing them in removal proceedings.

Removal proceedings are the most costly (for the noncitizen and for U.S. taxpayers alike) and least efficient way to process individuals who may legally have the right to remain or return to the U.S. with a new temporary or permanent residency visa.

These changes will disrupt employment relationships and lead to family separations.  Cases that could have been resolved administratively may take years to resolve in the immigration court.   The new policies will create a chilling effect on noncitizens, causing them not to go to USCIS to seek information or even to apply for immigration benefits for which they may be eligible.

At a time when the country needs more, not less, immigrants to help our economy and communities thrive, these changes take our country in the wrong direction.