Author: Beth Stickney

On April 25, 2018, the Supreme Court considered the legality of President Trump’s third version of his Travel Ban.  Indications during oral argument were that the Court’s majority conservative wing might be reticent to rule against the Executive Branch.   A ruling is expected in late June, 2018.

Following the Administration’s removal of Chad from the list of targeted countries, the ban continues to block virtually all immigration of intending permanent residents from Iran, Libya, North Korea, Somalia, Syria and Yemen.   This includes  those immigrating as spouses, children, parents, and siblings of U.S. citizens, and spouses and unmarried children of permanent residents.  It also includes individuals immigrating based on their employment who are typically highly skilled professionals, often working in STEM professions.

Travel Ban 3.0 also continues to block entry of most nonimmigrants, those coming to the U.S. temporarily to visit, study or work for U.S. employers in professional positions, who are nationals of the countries listed above, as well as blocking non-diplomatic visits by certain Venezuelan government officials and their family members.

The Travel Ban is successfully keeping families divided, and preventing employers from accessing the global talent they need to compete and grow, including families and employers in Maine.  A summary of Travel Ban 3.0 is available here.  (A separate ban also being litigated, “Travel Ban 4.0“, bars entry of refugees from several predominantly Muslim countries.)

Regardless of how the Supreme Court ultimately rules, a variety of other new policies and procedures by the current Administration have resulted in drastically reduced numbers of individuals coming to the U.S. from predominantly Muslim nations, as explained in a recent report by the Cato Institute.

On April 25, 2018, the Supreme Court will hear oral argument on the legality of the President’s Executive Order referred to as “Travel Ban 3.0”, which has been challenged on multiple grounds, including that it unconstitutionally discriminates against Muslims who wish to immigrate or come temporarily to the U.S.  The Supreme Court is expected to issue its ruling in late June.

Regardless of the outcome of the Supreme Court litigation concerning Travel Ban 3.0, numerous other immigration actions by the current Administration have resulted in a dramatic decrease in the number of Muslims admitted to the U.S. to visit, study, work, and to take up permanent residency.

A recent Cato Institute report examines data from FY 2016 until to date in FY 2018 that reveals a 91% plunge in Muslim refugee arrivals, a 28% decrease in immigrant (permanent resident – “green card”) arrivals, and a 32% drop in arrivals of nonimmigrant (visitors, students, temporary employee etc.) to the U.S. from predominantly Muslim countries. The report also delineates several of the policies that have led to these results.

Those who are not making it into the U.S. are people who would contribute to our communities by stabilizing their reunified families, and as consumers, employees, volunteers and entrepreneurs.   The de facto Muslim ban should be rejected as against our nation’s values, harmful to our economy, and as antithetical to our future prosperity.

You can read the Cato Institute’s report here.

On April 24, 2018, the U.S. District Court for the District of Colombia found that the Administration’s justification for rescinding the Deferred Action for Childhood Arrivals (DACA) program was unlawful.   The decision aligns with two other federal court decisions that enjoined DACA’s rescission which are currently on appeal, but also differed in one critical way.

The prior federal court decisions ordered the government to resume processing applications to renew the DACA status of those individuals who had previously received it.   This latest decision orders the government to also resume processing applications for DACA status by those who meet the program’s eligibility requirements but who are applying for the first time. (Eligible DACA youth could not apply until reaching age 15, and those who turned 15 after September 5, 2017, the date the Administration rescinded DACA, have been unable to apply.)

The D.C. Federal District Court’s decision applies nationwide.  However, the Court stayed its decision for 90 days to give the government an opportunity to provide additional justification for its decision to rescind.  If the government does not respond, the injunction will take effect on July 23, 2018.  If the government does respond, the Court will consider the legality of its new rationale.

So, while the media is largely hailing this decision as a victory for DACA supporters, it is much more ambiguous than that.  It potentially could lead the same Court eventually to rule in favor of the government, if the government follows the decision’s blueprint for correcting the deficiencies in its original DACA rescission rationale.

Once again, the only real solution for DACA/Dreamers lies with Congress.    A fourth Federal District Court had previously ruled that the DACA decision was legal.   It’s clear that with four differing federal court rulings,  and with pending appeals, litigating DACA’s continued existence offers only a temporary reprieve and no certainty to DACA/Dreamers whose lives and futures in the U.S. are very much in limbo.

Congress must continue to work for bipartisan legislation offering permanent legal status to the DACA/Dreamers who are already integral members of our communities and our economy.

In an April 21, 2018 editorial, the Bangor Daily News  synthesized recently released 2016 Census data to reveal that while many Maine counties suffered year over year net losses in population, all Maine counties saw increases in their foreign-born population.

In some Maine counties, that foreign born influx blunted the population loss, while in others it kept the population numbers virtually steady, and in still others, was responsible for a county’s growth.  The editorial noted that

(t)he numbers aren’t large. But they’re positive in every county, which points to a distinct reality: If Maine stands a chance of growing its population, that growth will depend on welcoming those from abroad to settle in Maine.

MeBIC agrees, and also agrees with the editorial’s stance that Maine should position itself to help immigrants integrate, for example, by ensuring access to Adult Education English as a Second Language (ESL) classes.   LD 1492, which MeBIC supported but was one of many “unfinished business” bills in this year’s State Legislative session, would have provided more funding to add capacity to the Maine’s ESL programs.

That bill should be reintroduced in next year’s Legislature. Maine needs to invest not only in order to attract immigrants to strengthen our communities, but also to ensure that they can reach their full potential, benefiting the entire state.

In a previous post, MeBIC described the Administration’s stated plan to rescind a regulation in June 2018 that enables certain spouses of H-1B visa holders, who have H-4 visas, to get work authorization.  This op-ed in the New York Times explains in personal terms the toll that this move would take on H-4 spouses, which in turn will diminish U.S. companies’ ability to compete for global talent.

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.

The H-2B non-agricultural temporary work visa has long been inadequate to meet seasonal labor needs. With a cap of only 33,000 visas for each half of the fiscal year, U.S. businesses have little hope of getting the labor needed for seasonal surges.

In the Consolidated Appropriation Act of 2018, passed on March 23, 2018, Congress included a fix that would allow about 63,000 additional H-2B visas for seasonal jobs that start before FY2018 ends on September 30^th.

In January, employers nationwide filed H-2B petitions for more than 80,000 summer/fall seasonal positions, far exceeding the 33,000 cap. With with the authority granted in the Appropriations bill, which was nearly identical Congress’s FY2017 H-2B visa shortage solution, the government should be able to act immediately on H-2B visa petitions that were rejected because of the cap.  But that has not happened, and summer is rapidly approaching.

On April 11, 2018, over 1300 businesses and trade associations nationwide that depend on an influx of seasonal workers signed a letter by the H-2B Workforce Coalition to the Secretaries of the Department of Labor and Department of Homeland Security urging them act immediately to resume processing H-2B visa petitions up to the full number allowed under the Consolidated Appropriation Act of 2018.

Twenty-two Maine businesses and trade associations, ranging from the hospitality sector, to landscaping and moving companies signed on to the letter.   Last year the government only released 15,000 additional visas, and did not begin processing them until July, in a classic “too little, too late” response.

Seasonal workers strengthen Maine’s economy, as this letter to the editor by a Maine innkeeper explains.  The federal government must do better this year.

On April 12, 2018, over 50 Chambers of Commerce from across the country signed a letter to Congressional leadership calling for Congress to pass legislation providing a path to permanent legal status for immigrants who arrived in the U.S. as children, the so-called Dreamers. Many of them now have legal protection under the Deferred Action for Childhood Arrivals (DACA) program, but only federal court injunctions stand between them and the loss of that protection and their work permission.

MeBIC Partners, the Maine State Chamber of Commerce, a MeBIC founder, and the Portland Regional Chamber of Commerce are two of the Chambers  who joined with MeBIC’s national partner, the New American Economy, to urge Congress to act now so that DACA/Dreamers will no longer be in limbo.

This drama began on September 5, 2017, when the Administration announced the rescission of the DACA program. Only Congress can provide a permanent fix to the crisis, but President Trump must stop moving the goalposts and frustrating the good faith efforts of bipartisan legislators who want to find a solution. The waste of human potential, and the economic costs of Washington’s inability to get a rational bill providing a path to permanent status for DACA/Dreamers over the finish line, are detailed in this previous MeBIC post.

The U.S. public and the business community nationwide and in Maine both overwhelmingly support crafting a solution for DACA/Dreamers.  Congress must prioritize acting on this.  Senators Collins and King were leaders in crafting a bipartisan solution for the DACA/Dreamers.   They should continue to press Congressional leadership for action.

USCIS announced on April 11, 2018 that it had completed the random selection process for the available cap-subject H-1B visas for FY 2019.

In just five days, USCIS received petitions for over 190,000 H-1B petitions, far exceeding the 85,000 combined caps for master’s degree and bachelors degree or specialized  knowledge employees.  It then conducted a lottery to select the petitions that it would actually consider.

USCIS will return unselected petitions and filing fees to their petitioning employers, unless the petition violated the multiple filing prohibition announced only days before the filing period began (when many employers would have already prepared their petitions and had them ready to submit to USCIS, as discussed in this MeBIC post).

The USCIS announcement confirmed that petitions not subject to the caps will still be accepted and processed.

With over 100,000 petitions unable to be processed due to the insufficient number of cap-subject visas, once again it is clear that the H-1B system is in need of an overhaul if it is to meet the needs of U.S. employers and the economy.

As we have written previously, the third iteration of the Administration’s travel ban, known as Travel Ban 3.0, is currently in effect, with lower court injunctions to block the Ban’s application held in abeyance while the case awaits a Supreme Court ruling.

Travel Ban 3.0 applied to eight countries, as explained in this post.  On April 10, 2018, the Department of Homeland Security announced that Chad, one of the targeted countries, has now met the U.S. government’s national security requirements and will be removed from the Ban. As a result, there will no longer be a blanket restriction against applying for visas for intending immigrants and visitors from Chad, though as is always the case, each individual applicant must show that s/he is eligible for the visas requested, and not otherwise inadmissible under existing immigration laws.

Oral argument in the Travel Ban case is scheduled for April 25th, and a decision by the Supreme Court is expected by the end of June, 2018.

On April 6, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that in only five days, the number of petitions filed for H-1B visas for FY 2019 (beginning October 1, 2018) far exceeded the annual 85,000 cap. This is the sixth year in a row where the cap has been reached in less than a week, indicating continued strong demand by U.S. employers for talent from around the globe.

USCIS will conduct a lottery to select which petitions it will process, and will return the remainder, together with their corresponding filing fees. Petitions for H-1B visas that are not cap-subject will continue to be processed by the agency, as explained in the announcement.

USCIS also made known on March 20, 2018 that it is suspending “premium processing” through which petitions are decided more quickly than the norm, until September 10, 2018. This means that many employers are not likely to get decisions on their petitions until well after the start of the new fiscal year, potentially disrupting their operations.

Another late USCIS policy change, dated March 23, 2018 but only publicly shared four days before the April 2, 2018 H-1B opening filing date, prohibits multiple filings by related entities for the same employee.  This may well lead to rejections or delays in processing of certain petitions prepared without knowledge of that guidance.

These developments underscore that the H-1B system, both in its numerical limits and in its implementation, falls far short of what U.S. employers and the U.S. economy needs.

On March 30, 2018, the Department of State (DOS) posted proposed revisions to required forms used by immigrant (permanent residency) and nonimmigrant (temporary) visa applicants, including those seeking to come to the U.S. based on their employment.

The suggested revisions would require visa applicants (with extremely limited exceptions) to provide their account identifiers used on a wide variety of social media platforms, as well as all of their phone numbers, email addresses, and international travel details from the previous five years. This is part of the current Administration’s increased vetting of most visa applicants.

These new questions will undoubtedly lead to an increase in visa denials of individuals who are otherwise qualified for their immigrant or temporary visas, including those based on employment. How could this happen?

First, under U.S. immigration law, there is no appeal to an independent body from decisions made by consular officers at U.S. consulates abroad. Second, consular officers have wide discretion to grant or deny visas. Third, after decades of “consular non-reviewability,” it is not uncommon for consular officers to deny visas based on speculation rather than fact. Fourth, the current Administration’s calls for “extreme vetting” may understandably push consular officers to err on the side of denying, rather than granting visas.

Past practice indicates that these proposed questions could trigger visa denials for a wide variety of reasons. For example, an H-1B specialized knowledge visa applicant who prefers Instagram or Twitter and forgets that five years ago, she signed up for, but then never used, Tumblr, may be denied a visa simply due to that omission when the government discovers the Tumblr account on its own. Or an immigrant visa applicant who posted photos on his social media account(s) showing him with a drink in hand at various parties over time, may receive a denial because consular officers think he abuses alcohol even if that is not the case. Or, an applicant for an L-1 intracompany transferee visa who at one point didn’t restrict who could “friend” him may have a “friend” with whom he has never actually interacted who has committed crimes or appeared on a “watch list,” leading consular officers to erroneously suspect a connection and corresponding negative activities by the applicant.

Maine employers concerned that the addition of these new questions could cause visa denials for valuable employees can file comments up to May 29, 2018 by following the instructions in the Federal Register for immigrant visas here, and here for nonimmigrant visas.   Maine employers can also contact MeBIC for assistance in drafting comments.

Refugee resettlement is a humanitarian imperative, particularly when there are more than 65 million forcibly displaced people worldwide. It’s also a legal obligation for the U.S. under our international law commitments. But refugee resettlement isn’t just an obligation; it’s an opportunity. In Maine, since 1980, refugee resettlement has been a reliable source of new community members, who go on to join Maine’s labor force and to contribute in myriad ways.

That reliable stream of refugees has slowed to a trickle under the new Administration. In FY 2016, about 650 refugees were resettled in Maine. To date in FY 2018, only 30 refugees have been resettled in the state.  The Administration’s various travel bans have targeted nationalities that have predominated Maine’s refugee resettlement activity in recent years, such as Somalis and Syrians.  As a result,  Maine is experiencing greater reductions in refugee resettlement numbers than many other states.

With unemployment below 4% in Maine for 26 straight months, this reduction in refugee resettlement has economic repercussions for Maine, as we lose a source of consumers, workers, and community members. Learn more in this Portland Press Herald article.