Author: Beth Stickney

On March 23, 2018, President Trump signed Public Law 115-66, the Consolidated Appropriations Act of 2018, to fund the federal government for the rest of this fiscal year.  Division M, Title II, Sec. 205 of that  spending bill allows issuance of H-2B non-agricultural seasonal worker visas for the 2018 summer season beyond the 33,000 cap, upon consultation between the Department of Homeland Security and the Department of Labor, and if it is determined that the needs of American businesses cannot be met with qualified, willing, and able U.S. workers.

Given that petitions for over 80,000 positions were received by the Department of Labor on the very first day of the “summer” H-2B visa filing season, there is little question that U.S. businesses need more H-2B visas than the 33,000 cap allows.

This “fix” is similar to the one intended to alleviate last year’s H-2B visa shortage.   The good news is that this year’s fix was enacted more than 6 weeks earlier than last year’s, and the necessary calculations to determine the maximum number of visas allowable under the fix were done last year (and therefore, shouldn’t need to be repeated this year).

The bad news is that while the government could have authorized over 100,000 additional H-2B visas last year, it declined to do so, authorizing only 15,000 more visas instead.  Also, the government announced the additional visas in mid-July last year – far too late for most seasonal employers.  Hopefully this year the Government will expeditiously determine that it will make far more H-2B visas available than it did last year, so that there will actually be meaningful relief for this year’s expected summer seasonal worker shortage.  USCIS posts updates on the availability of cap-subject H-2B visas here.

The further bad news is that Congress once again declined to enact a permanent solution to the chronic lack of sufficient H-2B cap-subject visas.  Instead, just as happened last year, they authorized additional H-2B visas only for the current fiscal year, which ends on September 30th.

Congress needs to craft a permanent law increasing the number of temporary H-2B visas available to meet the nationwide need for non-agricultural seasonal workers.  Particularly when unemployment is at record lows, businesses with seasonal needs should not have to face uncertainty about the availability of H-2B visas each year.

The $1.3 trillion omnibus spending bill signed today leaves out any solution for the young adults known as Dreamers whose futures are at risk due to the Administration’s rescission of the DACA program.

This is despite overwhelming bipartisan public support for a path to permanent residency for these individuals, who arrived in the U.S. as children and for whom the U.S. has been their only home for at least 11, to as many as 35 years.

It is also despite the efforts of many members of Congress, on both sides of the aisle, to include a solution for DACA/Dreamers in the spending bill.  Their efforts could not overcome the shifting positions of President Trump, who ultimately repeatedly rejected bipartisan proposals.  As recently as last week, the President said he would accept a spending bill that included a three year extension of status for DACA/Dreamers in exchange for three years of border wall funding, and then retreated from that stance.

For the time being, due to federal court orders, DACA renewal applications are still being processed, but no new applications will be accepted.  DACA eligible individuals who have grown up here and have turned 15 after DACA was rescinded are therefore unable to apply, putting the brakes on their hopes, and our country’s ability to benefit from their full potential.  And the federal court orders offer only a temporary reprieve.

The lack of a solution for the nearly 800,000 DACA/Dreamers is not only cruel, but it is damaging to our country’s values, and to our economic future.   We must keep the pressure on to find a fix for these individuals who are already fully part of and contributing to our society, so that they can continue to do so.  Their families, their communities, and their employers will suffer along with them if they cannot remain legally in the United States.

Two bills introduced to the Maine Legislature  in March 2018 at Governor LePage’s request will harm Maine’s economy by sending the message that Maine is not a welcoming state for immigrants.

• LD  1833, An Act to Facilitate Compliance with Federal Immigration Law by State and Local Government Entities, sponsored by Rep.  Laurence Lockman, would require all government entities in Maine to communicate and share information with federal immigration authorities, and require law enforcement agencies to act as immigration agents. This legislation is completely misguided for multiple reasons.
  • The bill is a solution in search of a problem. No government entities in Maine, including law enforcement agencies, fail to cooperate with federal immigration agencies, unless doing so would be in conflict with other federal laws or the U.S. Constitution.
  • Immigration law is extremely complex, and local authorities will inevitably violate the rights of U.S. citizens and others if they try to act as immigration agents. Profiling of individuals with foreign accents or imperfect or limited English will result, and indeed already has. (A case in point was the testimony describing a U.S. citizen originally from Italy who had stopped to check his tire, and was doggedly questioned by a Maine state trooper who did not understand that U.S. citizens need not carry any proof of their citizenship).
  • Immigrants nationwide worry that myriad changes at the federal level threaten their continued permanent residency or other legal status. This bill will make Maine’s immigrants afraid to contact local police if they are victims of or witnesses to crimes, and will make local communities less safe.
  • The bill sends a hostile message at a time when Maine needs to be welcoming to immigrants in order to have thriving communities and a vibrant workforce.

MeBIC testified in opposition to LD 1833.  It was voted out of committee on partisan lines.   MeBIC will continue to oppose LD 1833 as it heads to votes in the House and Senate.

• LD 1873, An Act to Align State-funded Benefits with Federal Eligibility Standards, introduced by Rep. Deborah Sanderson, would deny low-income Maine immigrants, including permanent residents and refugees, safety net public benefits. It would also target vulnerable asylum seekers who have come to the U.S. and Maine seeking protection. Federal immigration laws deny them work permits, and the ability to support themselves, until their asylum applications have been pending for more than 180 days.

Maine law presently allows asylum seekers to receive “general assistance” (GA) in order to have a bare subsistence level of support, while they wait for their work permits, and up to a maximum of 24 months. Asylum seekers overwhelmingly want to work and do so shortly after getting their federal work permits, quickly contributing more in income and sales taxes to the State and their localities than they received in G.A.

GA is a short-term investment with long term gain for Maine, as these asylum seekers contribute to our communities, our tax base, and our workforce.   MeBIC will oppose LD 1873. Read MeBIC’s talking points here.

The American Immigration Lawyers Association has released an important new report, Deconstructing the Invisible Wall: How Policy Changes by the Trump Administration are Slowing and Restricting Legal Immigration.

While some Administration actions such as the “Travel Bans,” termination of the DACA program, or deportations that have broken up families have captured headlines, many others have happened out of the public eye, but with devastating results.   Deconstructing the Invisible Wall explains the broad array of measures taken by the Executive Branch, without the need for Congressional action, that have constricted the pipeline of those legally eligible to immigrate or come temporarily to the U.S., and contributed to an image abroad of U.S. hostility towards foreigners that discourages some from even wanting to come visit, study, work, or live in the U.S.   Read the report here.

Immigrants have made essential contributions to their U.S. communities and to our economy for centuries, and continue to do so.    And despite the proliferation of anti-immigrant rhetoric, immigrants are vital to the country’s future.

Maine is currently experiencing record low unemployment that is leaving employers scrambling.  Even with wages rising in an effort to attract more workers, as a state with more deaths than births and with an aging workforce whose retirements will produce 90% of projected job openings through 2024, Maine  simply lacks enough available people to fill current and future job openings.

LD 1492, An Act To Attract, Educate and Retain New Mainers To Strengthen the Workforce, sponsored by Senator Roger Katz, recognizes that immigrants are part of our workforce solution, and are essential for a vibrant Maine.  LD 1492 positions Maine to better compete with other states to attract and keep immigrants in our communities.  In addition LD 1492 will help Maine’s immigrants reach their full potential more quickly by increasing the availability of English as a Second Language (ESL) classes, by creating worksite-based combined ESL and job training classes, and by expanding a Welcome Center Initiative to help more professional level immigrants navigate the process of translating their professional experience to Maine workplaces.   Small planning grants would also be available to communities whose immigrant populations are growing.

LD 1492 received strong support from Maine’s business community, including the Maine State Chamber of Commerce, the Maine Restaurant and Maine Innkeepers Associations, the Maine Health Care Association, and many individual businesses from southern Maine to Aroostook County.  As of March 15, 2018, both chambers of Maine’s Legislature approved the bill, with bipartisan majorities.

LD 1492 now faces its next hurdle as it heads to the Appropriations committee to vie for funding, before being scheduled for any additional votes.  Learn more about the bill here.

Bloomberg Businessweek featured Portland, Maine as one of three cities profiled in an article on how unemployment well below 4% is affecting employers, and the business community’s responses.

March 5, 2018 has arrived.  That’s the date that the Trump Administration declared as the last day of the Deferred Action for Childhood Arrivals (DACA) program.   It’s the date by which President Trump said Congress should craft a solution to allow DACA holders  to stay permanently in the U.S.

Were it not for two federal court injunctions  compelling the U.S. government to continue to accept DACA renewal applications, over 1000 DACA holders each day would now be losing their protected status and work permission.  But this is only a temporary reprieve; the government is appealing those decisions, and on March 5, 2018, a third federal court upheld the DACA rescission.

The nearly 800,000 individuals who have had DACA, including a few hundred from Maine, now live in limbo, their futures in suspense. These are people who are working, studying,  serving in the U.S. military, volunteering, and contributing in myriad ways to our nation, which is also theirs, given that many have no memories of the countries where they were born.

That limbo ripples far beyond DACA holders themselves. Employers don’t know if they will be able to keep their DACA employees on payroll.  Universities don’t know if their DACA students will be able to continue studying (and paying valuable tuition fees).  DACA holders have bought cars and homes, and their ability to repay their lenders will evaporate when they no longer have DACA work authorization.

President Trump said multiple times that he wanted to protect the DACA/Dreamers, but that Congress needed to act.   He said he would sign any bill that Congress sent to him. Congress did act, proposing a path to permanent residency for DACA/Dreamers and funding for increased border security, including an expanded border wall. But President Trump rejected that proposal, upping the ante and insisting on a complete and drastic overhaul of our nation’s immigration laws that would divide families and make us less globally competitive for labor, in exchange for a DACA/Dreamer solution.

Congress was right to reject President Trump’s demands. But Congress must continue the fight for permanent residency for DACA/Dreamers.   Our communities need them, our economy needs them, and it is the right and humane thing to do. Senators Collins and King were leaders in crafting a bipartisan solution for the DACA/Dreamers.   They should continue to press for action.

Update:  U.S. Citizenship and Immigration Services (USCIS) began receiving H-2B petitions on February 21, 2018 and within 5 days had received 2700 petitions representing 47,000 seasonal jobs for the summer/fall 2018 season, far exceeding the 33,000 visa cap.  On February 28, 2018, USCIS conducted a lottery and randomly selected the cap-subject petitions it will consider.  USCIS will reject any cap-subject petitions received after February 27th, and will return to their employers any petitions not selected in the lottery, with the filing fees.  USCIS will continue to accept petitions for cap-exempt H-2B visas.

Maine businesses should urge our delegation to support H-2B cap relief as part of the ongoing negotiations to fund the federal government past March 23, 2018. 

Read more below about how we got to this point.

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On January 3, 2018, the U.S. Department of Labor announced that by January 1^st, the first day that it accepted applications for the summer season, it had received applications covering more than 81,600 positions from employers hoping to obtain H-2B visas for seasonal non-agricultural foreign workers.  That number is triple that of January 1, 2017.  Only 66,000 H-2B visas are available annually, with a mere 33,000 allocated for seasonal jobs with start dates between April 1 and September 30.  While certain seasonal workers are exempt from the cap, the majority of employers who hoped to meet their summer season labor needs in part with H-2B workers are likely to be sorely disappointed.  Employers can learn which H-2B employees are exempt from the 33,000 cap, and track whether the cap has been reached here.

Last year, the H-2B summer seasonal visa cap was reached in mid-March, leaving Maine’s restaurants, hotels and other seasonal businesses scrambling to find staff.  Several had to open late or close early in the season, close some of their hotel rooms, or offer fewer meal shifts. Congress enacted a temporary fix applicable only to FY2017 that resulted in 15,000 additional H-2B visas  being added to the cap, but too late to benefit most employers.

When employers have to scale back because they can’t get the workers they need, this hurts entire communities.  States and localities lose tax revenues from the business’s reduced sales.  U.S. workers may lose their jobs or have reduced hours if a business decides not to open or limits its hours.  Local businesses lose the funds that foreign workers spend while living here.

Congress needs to enact a permanent solution to stop these perennial H-2B visa shortages.

In 2015, the Obama Administration issued a rule allowing spouses of certain H-1B professional/specialized knowledge visa holders to obtain work permission. The rule was an acknowledgment that many of these H-4 visa holding spouses of H-1B workers want to work, and their inability to do so was not only an emotional and professional or economic hardship for them, but also a loss of talent for the U.S.   It was additionally a policy that made the U.S. less competitive in the global labor market and harmed U.S. businesses’ ability to retain valuable employees.

The Obama Administration’s 2015 rule stemmed in part from long wait lists for permanent residency visas for citizens of certain countries.   For example, H-1B visa holders from India who are applying for their residency through their employment must wait over a decade to get their “green cards.”   This represents a tremendous amount of human capital.  For example, according to USCIS data, as of January 2018 over 20,000 Indian citizens holding bachelors or advanced degrees and already working in professional or skilled positions here in the U.S. were still waiting for adjudication of their permanent residency applications filed between 2006 and 2009.   Under the old rule, their spouses had no ability to work during this time.   The 2015 rule change allowed H-4 spouses in these circumstances to obtain work permits during the  backlog delay.   Otherwise, the H-1B worker might seek employment and residency in another country that allows the spouse to work, depriving her/his U.S. employer of a valuable employee.

In 2016, the first full year after the rule change took effect, over 41,000 work permit applications were approved for H-4 spouses,  enabling them to be productive, pay taxes, help support their families, and participate more fully in their communities.

A 2015  lawsuit claimed that allowing H-4 visa holders to work would harm U.S. workers.  While the Federal Court denied the plaintiff’s injunction request and the rule took effect, the litigation over the rule continued.

In April 2017, the Trump Administration asked the Federal Court to pause the litigation while they considered whether they want to revise the Obama Administration’s rule.   On February 28, 2018, the Administration indicated to the Court that it intends to issue a new proposed rule by June 2018.

It is anticipated that the current Administration will roll back the H-4 employment authorization rules.  This would make it harder for U.S. employers to retain the H-1B workers in whom they’ve already invested and who are part of their teams, and will harm our economy.

Should the current Administration indeed propose rolling back the Obama era rule, comments opposing that rollback during any “notice and comment” period will be critical.

After a Federal District Court in California struck down the Administration’s September 5, 2017 rescission of the Deferred Action for Childhood Arrivals program (DACA), the Administration appealed directly to the Supreme Court, trying, in an extraordinary maneuver, to skip over the usual appeal to the 9th Circuit Court of Appeals.

Following briefing and arguments on whether it should hear the appeal without the case first going to the 9th Circuit, today the Supreme Court declined to accept the Administration’s appeal.

That means that if the Administration wants to appeal the lower courts’ decisions (there are now two separate Federal District Courts that have ruled against the Administration), it must proceed first to the appropriate Circuit Courts of Appeal.

It also means the injunctions against the DACA rescission remain in place and USCIS must continue to accept certain DACA renewal applications.  Anyone wanting to renew their DACA status should talk ASAP with a competent immigration attorney.

What is next?   The government may appeal to the proper Circuit Courts of Appeal.  Or the Administration could decide to again announce that it will rescind DACA, and provide a different rationale that will stand up in court (the DACA rescission was struck down because the courts determined the rescission was based on flawed legal reasoning).   It will be interesting to see what the Administration decides to do.

In the meantime, DACA holders need certainty and only legislation giving them a path to permanent residency will provide that.  We must continue to work for passage of the Dream Act or another durable solution for DACA/Dreamers.

Immigration authorities recently announced a significant change in procedure that will affect all asylum seekers applying for safe haven before U.S. Citizenship and Immigration Services (USCIS).  All asylum applicants undergo a personal interview with USCIS to assess their eligibiity for asylum.   Because of growing backlogs, USCIS  will begin scheduling interviews on a “Last in, first out” (LIFO) basis to try to keep the backlog from growing.

Under the new procedure, USCIS will only schedule interviews with applicants whose cases were filed before early January 2018 if USCIS is able to keep up, via LIFO,  with newly filed asylum applications.   USCIS will chip away at the backlog, if possible, by working from more to less recently filed cases.

Maine asylum applicants have routinely waited as long as four years to be interviewed on their applications.  Now, individuals who have already waited nearly four years will likely be waiting many years longer for their interviews.

Conversely, under LIFO, new asylum applicants may be interviewed within 2 to 3 months of filing.  Many asylum seekers will be unable to find lawyers to help them properly prepare their applications and get ready for their interviews in this time frame, which may result in asylum seekers losing their cases.   The asylum application process is extremely complex, and asylum applicants without lawyers are far more likely than those who have competent legal representation to have their applications denied.

How does this affect Maine employees?

Asylum cases often present life or death situations.  Waiting for a decision on one’s asylum application means living a life in limbo, temporarily safe, but unsure if the U.S. will eventually allow a new, permanent future in the U.S., or will force the asylum seeker’s return to persecution abroad.  Waiting for years for this decision is extremely stressful.

Many Maine workers, especially those who have arrived in recent years from countries such as Rwanda, the Democratic Republic of Congo, Burundi, and Angola, are asylum seekers authorized to work while their cases are in process with USCIS.   In addition to their concerns about their own futures in the U.S.,   many are separated from their spouses and children who can only join them here once the asylum seekers have been granted asylum.   For asylum applicants already stuck in the backlog, the LIFO system will prolong by years their strain and worry about their futures and their family separations, as they wait for interviews, and decisions in their cases.

How can Maine employers help?

Employers who offer an EAP as an employee benefit can make sure that their employees are aware of that benefit, and other support that may be available.

When President Trump spoke last September about his decision to rescind DACA, the Deferred Action for Childhood Arrivals program, he stated that he had great sympathy (and even “love”) for these young adults (the so-called Dreamers), and urged Congress to get a deal done that would provide them with a path to stay in the U.S. permanently.

That was then.  On January 12, 2018, when presented with a bipartisan proposal to help the Dreamers, President Trump rejected the deal.

And this week, with debate on DACA underway on the Senate floor, and following countless hours spent by bipartisan groups of legislators to reach good faith compromises to allow for legalization of DACA/Dreamers, President Trump announced that he would veto any bill not incorporating his “four pillars”.  He then endorsed a 592 page bill sponsored by Sen. Chuck Grassley that went far beyond the scope of DACA and border security,  proposing arguably the most fundamental change in the values of U.S. immigration policy since 1924, when Congress imposed race-based national origins immigration quotas.

On February 15, 2018, the Senate voted on four immigration proposals. All of the proposals failed, including the bipartisan  Immigration Security and Opportunity Act (S.A. 1958) and the bipartisan  USA Act of 2018 (S.A. 1955), both of which were narrowly tailored to address DACA/Dreamers and border security.   MeBIC supported both of these measures, which had elements that both sides could like and hate, but at least were thoughtful compromises.  Of the four items voted on, S.A.1958,  sponsored by Senator Angus King and co-sponsored by Senator Susan Collins, gained the most votes in favor (54-45).  The Adminstration-backed Grassley bill received the least votes, suffering defeat  by 60-39.

The Senate will be on recess next week, while March 5, 2018, the last date of the DACA program (absent Court rulings blocking the rescission), looms.   When the Senate returns to work, it is imperative that they continue to make crafting a permanent solution for the Dreamers a top priority.

There is little doubt that President Trump’s veto threat influenced the outcome of this week’s debate.  Holding the nearly 800,000 DACA holders who are already integral members of our communities and the country’s economy hostage in order to achieve a massive overhaul of the U.S. immigration system is unconscionable from a humane perspective, and unwise from an economic one.   Any massive immigration overhaul should be the result of careful thought and a deliberative process, with hearings and input from a wide range of experts.   The 60 Senators who voted against the Administration-backed Grassley bill apparently agreed.

We can only hope that President Trump will revert to his earlier willingness to sign any bill that resolves the status of the DACA/Dreamers that gains bipartisan support, and will allow other immigration issues to be tackled at a later date.