Month: September 2018

As MeBIC has written previously, a federal court ordered the U.S. government to reunite the more than 2600 children taken from their parents after entering the U.S. seeking asylum under the administration’s “zero tolerance” policy.  Following months of forced separation and anguish, most of the parents and children have now been reunited.  However, in September, over 400 children remain separated from their parents, including  304 of them whose parents were deported (with many of those parents agreeing to deportation because authorities  told them they would be reunited more quickly with their children if they did so).

Now, lawyers from the ACLU who represent those children have gone to Central America to try to find their parents, who face a wrenching choice – give permission for their children to apply for asylum which means staying in the U.S. without them, or have their children returned to their home countries where they can be reunited with their parents but will face the same dangers that compelled the families to try to find safety in the U.S. in the first place.

Paralleling this tragedy, the administration has issued proposed regulations that would undo the Flores settlement agreed to by the federal government in 1997.  It stipulated that immigrant juveniles should be housed in the least restrictive setting possible, and that any detention must not exceed 20 days and must be in a state-licensed, non-jail facilities.  Standards for care and education also needed to be met.  The proposed regulation would thwart the Flores settlement and allow for indefinite detention of juveniles in unlicensed facilities.

We have a preview of what this new landscape would look like, as the administration grapples with over 13,000 minors now in its custody.   The administration is housing unaccompanied minors fleeing violence in Central America who came alone or were taken from their parents under the new “zero tolerance” policy in hastily constructed tent camps and abandoned shopping centers.    In Texas, these makeshift shelters don’t meet state licensing requirements for childcare facilities, so the Texas Board of Education recently decided that state funding can’t be used to educate the children housed there.  This has resulted in local school districts refusing to provide any educational services at all and immigration authorities are not adequately filling that void. Moreover, there have been reports of harsh conditions and abuse in the federal detention centers.

Nonetheless, the administration has proceeded to expand some of these facilities, such as the “tent city” in Tornillo, Texas, and has been moving minors there from shelters in other states.   While the administration says the minors’ stays in these centers will be short term, because it has begun detaining undocumented relatives already living in the U.S. who step forward to foster them, those relatives are now afraid to come forward.

While there is no question that the federal immigration system needs an overhaul, the current administration has made the border situation a humanitarian disaster.  This is despite the fact that the number of people trying to enter the U.S. is similar to recent years, and far lower than the numbers apprehended in FY 2014 or seeking entry in FY 2016.

The administration’s solutions betray the nation’s values, and will cause irreversible damage to children and families who came to the U.S. believing that we were a beacon of safety, human rights, democracy, and opportunity.   That reputation is being shattered, despite the economic reality that we need immigrants as much as we ever have.

Comments are due by 11/6/2018 on the proposed regulations that would gut the Flores settlement.  Please contact MeBIC if your Maine business wants more information about submitting a comment.

Foreign student (F-1) visa holders pursuing bachelors or advanced degrees at U.S. colleges and universities are allowed to take advantage of “optional practical training” (OPT) to gain work experience in their fields of study.   Some students use their OPT time for internships during the school year, and many others work after graduation.

An employer can petition for an H-1B professional work visa on the F-1 graduate’s behalf, so that the s/he can continue to work for the employer after the OPT period and corresponding work permit ends.   However, there are annual numerical limits on H-1B visas, particularly affecting F-1 visa holders who have only bachelors degrees.  That visa limit is known as the “cap.”

New H-1B visas do not become available until the beginning of each fiscal year on October 1st.  However, the F-1 visa holder’s OPT work permit may expire before that date.   USCIS devised a “cap-gap” regulations for this situation allowing the F-1 visa holder to continue working uninterrupted until the approved H-1B visa validity kicks in on October 1st.  This policy has avoided disruption for the employer and the employee alike.

USCIS has just announced that due to processing backlogs, many initial H-1B visa petitions for F-1 visa holders will not yet be decided by October 1, 2018, the start of FY 2019.   It noted that former F-1 students covered by the “cap-gap” whose work permits have already expired or will expire on September 30th will no longer be able to work until USCIS approves the employer’s H-1B petition filed on their behalf.  USCIS clarified that these “cap-gap” individuals can stay in the U.S. while they wait for USCIS to adjudicate their H-1B petitions, as long as they don’t work.   While the F-1 student can volunteer for the employer after September 30th, any form of monetary or in-kind contribution during this limbo period would constitute unauthorized employment and be a violation of status.   The F-1 student would have to leave the U.S. to obtain a new visa at the appropriate U.S. consulate abroad, causing additional disruption.

This information is not a substitute for individualized legal advice.  Employers and their F-1 employees with pending H-1B applications that have not been decided by September 30th should consult with their immigration counsel for more details.

As reported in a prior post, on June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) announced a new policy under which it would assume a power normally delegated to Immigration and Customs Enforcement (ICE), the agency charged with interior enforcement of U.S. immigration laws.  Under the new policy USCIS would have vastly expanded power to issue the Notice to Appear (NTA) initiating proceedings to remove from the U.S. noncitizens who have applied to USCIS for permanent residency or nonimmigrant status.

After postponing implementation of the new NTA policy in July, the administration announced on September 26, 2018 that it will take effect on October 1, 2018.   The announcement states that implementation will be incremental and will apply at the outset to I-485 applications (applications for permanent residency) and to I-539 applications to extend or change nonimmigrant (temporary) visas, such as a visitor requesting to stay longer, or to change to a student visa to study at a U.S. university.  USCIS says it will not yet apply the new policy to humanitarian petitions or employment-based applications.

Since employment-based applicants for immigration benefits typically have legal representation, as a practical matter, this new policy is likely to disproportionately be applied to immediate family immigrants who often file their applications without a lawyer and can make innocent mistakes as a result.

Coupled with a new policy that took effect on September 11, 2018 directing USCIS employees to deny applications that may be incomplete or have an error, instead of requesting more information as was the prior practice, the new NTA policy will result in many more people ending up in removal proceedings.  In many cases, they will be able to apply again in front of the immigration court, but their immigration process will be much longer, more complicated, more burdensome emotionally and financially, as well as more costly to U.S. taxpayers.

The new NTA policy continues this administration’s disturbing trend towards “zero tolerance” and a heightened enforcement mentality, even towards those who have the legal right to apply to remain in the U.S.

The State Department has announced that registration for the Diversity (DV) lottery for fiscal year 2020 will be open from noon (EST) on October 3, 2018 through noon (EST) on November 6, 2018.

The DV lottery allows foreign-born individuals, whether they are abroad or in the U.S., to apply for a chance to immigrate to the U.S.    A person who is selected next spring after registering this fall for the DV-2020 lottery will able to apply for residency at the start of FY 2020 on October 1, 2019.  S/he may apply with USCIS, if s/he is already in the U.S. and is otherwise eligible, or else may apply with the State Department for an immigrant visa interview at the appropriate U.S. consulate abroad.   The person will undergo the usual medical exam and criminal and security background checks before being interviewed or approved to immigrate.

The lottery is pure luck.  But up to 50,000 people  gain residency each year because they happened to be lucky.

A person who is in the U.S. on a work permit, such as an asylum seeker, who has never violated her/his status, can register for the lottery and if selected, may be able to get her/his green card through the lottery.   Registering for the lottery in no way adversely affects a person’s current status or other applications already pending with USCIS.

Eligibility requirements for the DV-2020 lottery include:

• Not being from one of the ineligible countries (see list in the announcement);
• Having completed high/secondary school in the U.S. or abroad (a G.E.D. is not sufficient); or
• Having worked for at least two years of the previous five years in a skilled trade, which is one that takes at least two years to become qualified in it.

There is no age requirement, although people under 18 may not qualify if they haven’t yet met the education or skills requirement.

An individual may only submit ONE lottery application.  If more than one is submitted, the person will be disqualified.  However, spouses may include each other, giving them two chances to be selected (but each spouse must meet the eligibility requirements).  All children who are unmarried and under 21 must be included on the registration application in order to be allowed to immigrate if their parent is selected in the lottery.

Employers in Maine with employees currently working with work permits, such as asylum seekers, should encourage their employees to get additional information about eligibility to register for the lottery.  While it’s a long shot, many asylum seekers have won the lottery and gained residency through it while their asylum cases remained stuck in processing backlogs.

Note that lottery registration is FREE.  Instructions and the application form will be posted on the State Department’s website on October 3rd.  Those signing up for the lottery from inside the U.S. should avoid any website that asks for a fee to register, and also avoid people who are not lawyers, or authorized by the Board of Immigration Appeals to provide immigration law assistance, who ask for money to “help” with a lottery application.  Unauthorized practice of law is illegal in most states, including in Maine.

MeBIC is available to come and talk with employees at Maine businesses and nonprofits to help them understand the lottery and whether it may or may not be worth it for them to register.  Contact MeBIC for more information.

September 17, 2018 was “National Citizenship Day,” part of a week when thousands of permanent residents nationwide took the oath in over 100 U.S. cities and territories to become newly naturalized U.S. citizens. For them, this was the culmination of years of contributing to the United States as neighbors, friends, family members, volunteers, workers, employers, and taxpayers, and of reaching for their version of the American Dream.

Permanent residents (“green card” holders) can live and work permanently in the U.S. as long as they follow all of our laws. But only once they become U.S. citizens can they petition to bring their immediate family members such as their parents, siblings, and their married children to the U.S., or apply for certain jobs restricted to citizens, or vote in federal and state elections.

For most immigrants, applying for citizenship involves completing a lengthy and often confusing application form, paying $725 in application fees, undergoing criminal record and security checks, and going through an interview testing their ability to speak, read and write in English, and their knowledge of U.S. history and government.  (See this study guide to learn what the test covers).

But many immigrants who may have hoped they could soon naturalize are having their hopes dashed.   At the end of the second quarter of FY 2018 (the most recent data available), 753,352 naturalization applicants were stuck in a backlog, including 575 immigrants from Maine. This is a 44% increase over the number of naturalization applications pending with U.S. Citizenship and Immigration Services (USCIS) at the end of FY 2016. Where most N-400 naturalization applications were decided in less than six months under the prior administration, now, the average processing time is over ten months, with many applications pending for nearly two years.

These backlogs not only prevent noncitizens from reuniting their families and voting. They also have an economic cost to them and to the country. Immigrants who become U.S. citizens are more likely to buy a home, to increase their earnings and pay higher taxes, and to have health insurance.

On National Citizenship Day, immigrant advocates filed suit against USCIS to compel it to release data that may help explain the reasons why so many immigrants are having their dreams of becoming U.S. citizens deferred.

Stay tuned.

Secretary of State Mike Pompeo announced on September 17, 2018 that the U.S. will cap refugee admissions in FY 2019 at 30,000.

This is a one-third reduction from the 45,000 cap set by the Trump Administration for FY2018, which at that time was the lowest cap ever since Congress approved the Refugee Act of 1980.

As a practical matter, the U.S. is on track to admit fewer than 22,000 refugees by the time FY 2018 ends on September 30th, less than half the number who could have entered under the current year’s cap.   If refugee admissions continue at the same pace in FY 2019, they will fall far below the new 30,000 limit.

In Maine, with just over a week remaining in the fiscal year, only 66 refugees have been resettled.   This is a dramatic change from the approximately 650 refugees resettled in Maine during FY 2016, the last full year of the prior administration.  (For a detailed and accurate narration of why refugee admissions have been so low in FY 2018, listen to this This American Life podcast).

As of June 2018, there were a record 25.4 million refugees forced out of their home countries worldwide, up from 22.5 million a year ago.   Reducing refugee admissions now is an unconscionable abdication of the U.S.’s leadership role in providing safe haven and protection from human rights abuses.

As justification for the drop in refugee admissions, Secretary Pompeo noted the backlog of nearly 800,000 asylum cases in the U.S., but that is a false equivalence.   That backlog has built up over decades.  Processing asylum applications of individuals who have been able to make their way to the U.S. to apply for protection from persecution from inside the U.S. in no way diminishes the State Department’s obligation to reach refugees living in precarious conditions abroad so that they can apply for permanent resettlement in the U.S.  Moreover, as the Cato Institute points out, contrary to Secretary Pompeo’s assertion, the U.S. is far from the “most generous” country when it comes to refugee resettlement..

Moreover, refugee contribute economically to Maine and  to the U.S.  as even a government analysis that the administration chose not to publish confirmed.  At a time when Maine’s, and the nation’s, labor pool is shrinking as fertility rates decrease and “baby boomers” retire, the U.S. needs immigrants, including refugees, and their children.  By closing our door to refugees, we harm our standing in the world, and our ability to prosper economically here at home.

MeBIC partner  New American Economy has released data examining how the nation’s 100 largest cities are faring at welcoming and integrating immigrants.

The NAE Cities Index looks at the characteristics of cities that have high or emerging immigrant populations, and at the role that public policies can play in helping cities attract and ensure that immigrants have enhanced possibilities of reaching their full potential.   NAE also reports on socio-economic outcomes and  best practices of cities that have successfully welcomed and integrated immigrants.

Maine needs people, including immigrants, to stem the state’s “demographic winter” and worsening labor force shortages.  The NAE Cities Index can help Maine’s policy makers gauge various ways that our cities can step up to help immigrants succeed personally, and in turn help Maine’s communities and economy to grow and thrive.

Effective September 11, 2018, U.S. Citizenship and Immigration Services (USCIS) now can deny applications that are missing any supporting documents when filed.

As we noted in a prior post, in the past, as long as an application was completed, signed, and included the correct filing fee, USCIS would send either a request for additional evidence (RFE) or a notice of intent to deny the application, giving the applicant 87 or 30 days, respectively, to respond.

Under the new policy now in effect, USCIS can simply deny any application that is not absolutely perfectly prepared.  This will especially harm those applying for residency or work permits on their own without competent legal representation –  who often are lower-income.

When USCIS denies an application for any reason, even just for an administrative, not an eligibility issue, there is no refund of the filing fee.  Low-income income individuals often must save money for months or longer to  afford the USCIS filing fees.  For example, the application fees exceed $1700 for residency based on marriage.   Under the new policy, just failing to include a proper translation of a foreign birth certificate with that application will result in denial.  It could be months before the couple has enough money to refile the application, and in the meantime, typically the applicant will be unable to work, and likely will be at risk of removal from the U.S. and from her/his spouse.

Even applicants for employment-based temporary visas or permanent residency will be prejudiced under the new policy if s/he, or a rushed or inexperienced attorney, makes a mistake when preparing the application packet.   A denial as opposed to an RFE can expose the applicant to being out of status, unable to work legally, and forced to leave the U.S. to process at a U.S. consulate abroad.   The employer will be deprived of the employee for months or even years, in certain situations.

This new policy is one of many adopted by the current administration that takes aim at those trying to follow the law to come or stay in the U.S.    These policies are making it harder for families to reunite or stay together, and for employers to get and keep the talent and the workforce that they need.

Earlier in 2018, USCIS stripped the phrase that we are a “nation of immigrants” from its mission statement.   But immigrants have built this country and keep the nation vibrant and our economy strong.  As repeated studies have shown, we shut down immigration at our peril, and the business community needs to speak out and oppose administration policies that work against our historic values and our economic interest.  Many are already doing so, but the drumbeat needs to grow louder.

Note:  Employers should talk with their immigration legal counsel about the impact that this policy change could have on any immigration applications to be filed on behalf of or by their employees.

ICYMI – This article in the Portland Press Herald/Maine Sunday Telegram highlights how a lack of farmworkers is harming some of Maine’s farms.

Maine’s unemployment rate has remained below 4% since December 2015, resulting in a widely reported labor crisis, particularly in the hospitality sector.   Shortages in agriculture, construction, and healthcare have gotten less press, but they are acute.

Unless Congress acts, the administration’s decision to end TPS for Haitians, Salvadorans, and Hondurans, among others, and to rescind the DACA program will ultimately lead to a loss of a million workers from the U.S. labor supply, many of whom work in sectors hard hit by labor shortages.

The Press Herald article sheds a light on the real costs to Maine’s farmers of insufficient U.S. workers coupled with a complicated, expensive and slow immigration system that is often inadequate to the task of supplying needed seasonal workers.   Due to the administration’s immigration policies, the problem is sure to get worse.

As MeBIC posted previously, 50 CEOs of leading U.S. businesses recently spoke out about how changes in the policies and practices of the administration’s implementation of U.S. immigration law is harming U.S. competitiveness.

Their call is becoming a chorus. A briefing in The Economist analyzing the shifting landscape of Silicon Valley highlighted a dysfunctional immigration environment as one of the key challenges:

More than half of the top American tech companies were founded by immigrants or the children of immigrants…. (t)he Trump administration has brought in rules that severely restrict the number of foreigners who can receive work visas. Some tech firms have experienced delays of up to 18 months for foreign hires whom they might otherwise have been able to bring over swiftly. Students who come to America for degrees increasingly end up going home afterwards, willingly or not. “If you ask me ten years from now why Silicon Valley failed, it will be because we screwed up immigration,” predicts Randy Komisar of Kleiner Perkins, a venture-capital firm.

This is just one more voice raising the alarm that the administration’s immigration policies are jeopardizing the nation’s economy, joining the U.S. Chamber of Commerce, FWD.us, and MeBIC partner, the New American Economy, among others.

This recent New York Times article underscores that the harmful impact of the administration’s approach to immigration extends far beyond Silicon Valley.  Employers and business owners from multiple sectors, ranging from medical and high tech fields to hospitality and agriculture describe their struggles when they can’t get the workers they need.

As these articles point out, those who might want to come to the U.S. to contribute while also reaching for their own “American Dream” are increasingly hitting delays and barriers, leading some to head to Canada and other countries instead.  U.S. companies that want to expand or just to survive may have to follow suit.

This prior MeBIC post describes just some of the many ways the administration is putting a stranglehold on immigration without involving Congress, to the detriment of our economy and our heritage.  A more detailed description of the administration’s actions appears here.

So far, it doesn’t appear that Washington is listening to the business community, but as the chorus grows louder, perhaps it will.