In a November 19, 2017 Bangor Daily News opinion piece, Maine State Chamber of Commerce CEO Dana Connors joined Cynthia Phinney, President of the Maine AFL-CIO, to urge Congress to pass legislation creating a path to permanent status for those holding Deferred Action for Childhood Removals (DACA) status, also known as Dreamers.  These are immigrants who entered the U.S. when they were children, who have lived here for at least ten years, and for many of whom the U.S. is the only home that they can remember.

Approximately 800,000 immigrants benefited from the DACA program before it was rescinded by the current Administration on September 5, 2017.   Without Congressional action, beginning on March 6, 2018, each week more than 8500 immigrants with DACA will lose their permission to live and work legally in the U.S.   The Dream Act of 2017 (S. 1615, H.R. 3440) would allow those who have DACA to apply for permanent residency, an option that doesn’t exist for the vast majority of them under current law.

Dana Connors is on MeBIC’s Board of Directors, and the Maine State Chamber of Commerce is a MeBIC Partner.

The U.S. Chamber of Commerce,  on November 15, 2017,  renewed its call on Congress to act before the end of 2017 to pass  legislation creating a path to permanent residency, such as the Dream Act of 2017 (S. 1615, H.R. 3440), for the nearly 800,000 immigrants with DACA status.  Congressional inaction will result in over 8500 DACA holders each week losing their legal status and legal ability to work, starting on March 6, 2018.   By November 2018, about 300,000 DACA holders will have been forced out of the workforce, joined by over 400,000 more through 2019.  The costs to the U.S. economy in turnover expenses, lost tax revenues, and negative impact on the GDP are estimated to be in the hundreds of billions of dollars; not to mention the costs to our communities in which DACA holders are our neighbors, relatives, students, volunteers, workers and entrepreneurs.

Yesterday’s statement coincided with a day of action on Capitol Hill attended by over 100 DACA holders and additional business leaders.   The U.S. Chamber of Commerce has been a consistent supporter of a path to residency for these immigrants.

 

Following legal challenges partially blocking President Trump’s first two travel bans, on September 24, 2017, President Trump announced a new version, commonly being referred to as “Travel Ban 3.0.”   It was largely blocked one day before taking effect on October 18, 2017, by two separate decisions by the Federal District Courts of Hawai’i and Maryland.   These decisions were temporary, pending December hearings on the legal challenges.

On November 13, 2017, the 9^th Circuit Court of Appeals allowed parts of Travel Ban 3.0 to go into effect while the legal challenges run their course.

Current state of play (Note: this is not intended to be a substitute for individualized legal advice).

The following people from the targeted countries will not be issued immigrant (permanent residency) or nonimmigrant (temporary stay) visas or be allowed to enter the U.S.,  unless they can prove a “credible claim of a bona fide relationship with a person or entity” in the U.S., as explained further below:

• Chad, Libya and Yemen: All immigrants and, nonimmigrant visitors for pleasure or business.
• Iran: All immigrants and nonimmigrants, with the exception of student and exchange (F, M and J) nonimmigrant visa holders (who nonetheless will undergo extra scrutiny).
• North Korea and Syria: All immigrants and nonimmigrants.
• Somalia: All immigrants. All nonimmigrants will be subject to extra scrutiny.
• Venezuela: Certain government officials and their family members, traveling on visitor or other non-diplomatic nonimmigrant visas.

The ban applies to people from the named countries who were outside the U.S. and did not have valid, previously issued U.S. visas on the ban’s effective date.  It does not apply to:

• Dual nationals using the passport of their non-targeted country.
• U.S. Permanent residents (green card holders), or those who already have refugee, asylee, or withholding of removal status in the U.S., who are from the targeted countries and are returning from travel abroad.
• Diplomats or those with similar visas.

Waivers of the ban may be issued if determined to be in the national interest, among other criteria.  As a practical matter, waivers will be virtually impossible to get.

A “bona fide relationship with a person or entity” in the U.S. in the family context should include: parents, spouses, children of any age, siblings and half-siblings, and these step-relationships, as well as fiancée(e)s, sons and daughters-in-law, grandparents, grandchildren, brothers and sisters-in-law, aunts, uncles, nieces nephews, nieces and cousins.

A “bona fide relationship” with an entity should include students accepted to study at U.S. educational institutions, persons offered employment at U.S. employers, and those invited to attend conferences or to speak at lectures, etc. However, the definition currently excludes those accepted for resettlement by a U.S. refugee resettlement agency who have not yet received their refugee visas to travel to the U.S.

How does this effect Maine businesses?

• It is unclear how generously the government will interpret the exception for those with a bona fide relationship to an “entity.”   Universities and businesses hoping to bring a national of one of the targeted countries to the U.S. to lecture, study, present at a conference, or to work, should expect the visa issuance process to take longer than usual, and should work with an experienced immigration attorney.
• Any employees from the specified countries, whether naturalized U.S. Citizens, permanent residents, refugees, asylees, or nonimmigrants with unexpired visas,  can expect a heightened level of questioning at U.S. ports of entry following any travel abroad, despite the fact that Travel Ban 3.0 is not supposed to apply to them.  They should be advised to consult with a competent immigration attorney before traveling abroad.
• If you have immigrant employees from any of the named countries, be aware of their fear and worry that their relatives, whom they might have been expecting to immigrate soon, may not be able to come, despite the exception to the travel ban for those with family members already in the U.S. under the current injunction.
• If you have an employee who needs to renew her/his work visa abroad, the process may be more complicated and take much longer than usual because of the need for an in-person interview at the relevant U.S. consulate.

11/13/2017 Update:  Today, a federal class action lawsuit was filed challenging “Travel Ban 4.0″‘s  suspension of the processing of refugees from the 11 countries mentioned below, and of the spouses and children of refugees already resettled in the U.S.  MeBIC will update this page as the case progresses.

__________________________

On September 24, 2017, the Administration published its determination of the number of refugees that will be allowed into the U.S. during FY 2018.   Then, on October 24, 2017, President Trump issued an Executive Order (referred to as EO-4 or Travel Ban 4.0) announcing changes to the implementation of the federal Refugee Resettlement Program.

• What are the changes to the U.S. Refugee Resettlement Program?

Lower total numbers admitted: For FY 2018 (October 1, 2017, to September 30, 2018), the Administration  will cap refugee admissions at 45,000, the lowest number since Congress passed the Refugee Act of 1980. In comparison, last year’s cap was 110,000. The average cap since 1980 has been about 95,000. With a record high of over 65 million displaced people in the world currently, including 22.5 million refugees, this low ceiling greatly diminishes the U.S.’s commitment to provide protection at a time of unprecedented humanitarian crises worldwide.

Refugee admissions from eleven predominantly Muslim countries temporarily suspended:  During a 90 day “review period”, refugees from 11 countries will not be resettled in the U.S. unless they can show, on a case-by-case basis, that their resettlement would be in the national interest, among other criteria. The targeted countries are understood to be Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen. As a practical matter, virtually no one will meet the “national interest” test.

Admission of immediate family members of refugees indefinitely suspended:  Processing of refugee applications to reunify spouses and children of refugees already resettled in the U.S. (“principal refugees”) is suspended indefinitely, causing significant uncertainty and delays, while the government undertakes a review of  its procedures.

Heightened scrutiny:  Finally, applicants for refugee resettlement will face heightened scrutiny, despite historically having been the most thoroughly vetted category of noncitizens coming to the U.S.   New requirements include providing addresses going back 10 years, rather than the usual five, and providing email addresses and phone numbers of all members of their family tree, no matter where in the world these relatives are.   People forced to flee wars or persecution often move frequently and live informally (without a fixed address) and in many cases may lose contact with members of their family. These new requirements, as a practical matter, may result in refugees who need and deserve resettlement being denied.

• How will this affect Maine’s businesses?
  

Maine is home to many immigrants from Iran, Iraq, Somali, South Sudan, Sudan and Syria.   The FY2018 restrictions on refugee admissions will mean that Maine residents from these countries who were anticipating reuniting imminently with their  family members still abroad, including their spouses and children, now face further separations and uncertainty about whether this will be the last delay. The other changes will prolong the family reunifications of refugees coming from other countries not on the list of eleven, as well.

Affected immigrants working in Maine will face great emotional and financial strain due to the postponed reunification with their loved ones. In addition, due to all of these changes, Maine will resettle hundreds fewer refugees than it has in recent years, at a time when we need to grow our population for the health of our communities and our labor supply.

On September 5, 2017, the day that the Trump Administration announced its rescission of DACA, the Deferred Action for Childhood Arrivals program,  the George Hale and Rick Tyler show on Bangor-based WVOM radio interviewed MeBIC’s Beth Stickney about DACA and the reasons why DACA holders need a path to permanent residency in the U.S.

Beth Stickney appeared in a September 14, 2017 article in The Ellsworth American about the negative impact that the end of the DACA program will have on Maine’s labor force, including in Washington County.

On September 27, 2017, MeBIC’s Board Secretary Dana Connors, the CEO of the Maine State Chamber of Commerce, spoke to Maine Public radio about why 30 business, education and economic development leaders sent a letter to Maine’s Congressional delegation urging them to pass the Dream Act of 2017 for those with DACA.

Update:  On November 10, 2017, the Brunswick Times Record published an opinion piece urging passage of the Dream Act of 2017 co-authored by MeBIC’s director Beth Stickney and David Vail, Bowdoin College Professor Emeritus of Economics and chair of Coastal Enterprise, Inc.’s Public Policy Committee.   CEI is a MeBIC partner.

On November 6, 2017, the Department of Homeland Security (DHS) announced that it will end Nicaraguan Temporary Protected Status (TPS) on January 5, 2019, but it has not yet made a decision about terminating Honduran TPS and will therefore extend it for six months while it deliberates.

Congress created TPS to allow foreign-born individuals already in the U.S. when natural disasters strike or civil conflict erupts or escalates in their home countries to apply to stay and work legally in the U.S., until our government determines they can return. TPS is normally granted and extended in 12 or 18-month increments.

Nicaraguans and Hondurans with TPS have lived in the U.S. since at least December 1998, with more than half having lived here for over two decades.  Approximately 57,000 Hondurans nationwide have TPS, and another 3000 Nicaraguans do.   Maine has many Hondurans with TPS living and working in communities throughout the state.  Many have U.S. citizen children.

DHS Acting Secretary Elaine Duke urged Congress to pass legislation to allow the Nicaraguans who will be losing their TPS status, to remain in the U.S. permanently.

On October 26, 2017, the U.S. Chamber of Commerce wrote a letter urging the Department of Homeland Security to extend Temporary Protected Status (TPS) for Haitians, Hondurans and Salvadorans, and to work with Congress to create a path to permanent status for these individuals.

Congress created TPS to allow foreign-born individuals already in the U.S. when natural disasters strike or civil conflict escalates in their home countries to apply to stay and work legally in the U.S., until our government determines they can return. TPS is normally granted and extended in 12 or 18-month increments.

Some countries received their TPS designations years ago, and their citizens have received multiple extensions of TPS because their countries could not reabsorb them without significant economic destabilization or due to ongoing wars. In early 2018, four of those countries’ TPS extensions will expire if not renewed by the Department of Homeland Security.   These include:

• Honduras: TPS has been in effect since 1999 and the current extension will expire January 5, 2018. Approximately 57,000 Hondurans have TPS.
• Nicaragua: Same as Honduras, except only about 3000 Nicaraguans have TPS.
• El Salvador: TPS has been in effect since 2001 and the current extension will expire March 9, 2018. Approximately 195,000 Salvadorans have TPS.
• Haiti: TPS has been in effect since 2010, and the current extension will expire January 22, 2018. Approximately 50,000 Haitians have TPS.

According to a July 2017 report by the Center for Migration Studies, over half of Salvadoran and Honduran TPS holders have lived in the U.S. for more than 20 years. A majority of Salvadoran, Honduran, and Haitian TPS holders are parents to a collective total of more than 273,000 U.S. citizen children. Well over 80% of these TPS recipients are in the workforce, surpassing the rate of 63% for the U.S. native-born population.  They are also our neighbors, our friends, our volunteers, and are integral members of our communities.

Ending TPS for Haitian, Honduran, and Salvadoran TPS holders will result in over 300,000 people exiting our labor force. As the U.S. Chamber of Commerce points out in its letter, nationwide, high numbers of TPS holders work in construction, food processing, hospitality, and home healthcare.

Maine has many TPS recipients, particularly from El Salvador and Honduras, who are indeed working in the sectors mentioned above, and who have a strong presence on Maine’s farms as well. Losing these individuals from our Maine communities and workforce will leave employers scrambling to find replacements in an already tight labor market, and will retard growth.

These individuals have been integral parts of our communities for nearly 20 years or more.  Their TPS status should be extended, and Congress should work to create a path for them to gain permanent residency.

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

On September 27, 2017, thirty members of Maine’s business, economic development, labor, and higher education sectors, including MeBIC and many MeBIC partners, sent a letter to Maine’s Congressional delegation urging them to support the Dream Act of 2017 (S. 1615, H.R. 3440). The Dream Act would provide a path to permanent status for young adults who came to the U.S. while still children, who will soon become undocumented following the Administration’s decision to rescind the DACA program effective March 5, 2018.

MeBIC helped spearhead this effort.  Learn more about the urgent need for Congress to pass the Dream Act or another durable solution for those with DACA, here.

On September 8, 2017,  representatives of several MeBIC partners met with Senator Susan Collins, to urge her to work for a permanent solution for the DACA  youth who will lose their legal status and work eligibility on March 8, 2018.

In attendance were Dana Connors, CEO of the Maine State Chamber of Commerce, Carla Dickstein, SVP for Research and Policy Development at Coastal Enterprises, Inc., Mark St. Germain, President of St. Germain Collins, David Barber, Senior Consultant at Barber Foods,   David McElhinny, President, and Cindy Caplice, Human Resources, of SIGCO, Inc., and  MeBIC’s Executive Director, Beth Stickney, together with a young man holding DACA status who will become deportable when DACA ends.

Attendees discussed Maine’s acute and worsening workforce shortage, and the importance of immigrants to Maine’s communities, labor supply, and economy.  The DACA holder, who is pursing a STEM degree in college, told of growing up in Maine since age four, and explained that he was in high school when he first learned that he had no legal status.  He described the doors that opened once he got DACA, allowing him to work, pay taxes, and pay his way through college.  He told Senator Collins about the business he started, where he employs local workers and pays payroll taxes.   He would have to close his business and lay off his employees, and could not afford to continue studying, if Congress fails to create a path to legal status for those who will soon lose their DACA status.   He urged Senator Collins to support the Dream Act of 2017.

The Senator was clearly moved by the young man’s story, and stated her unambiguous commitment to finding a solution so that he, and the nearly 800,000 other DACA holders like him, can stay and reach their full potential in the U.S.

On September 5, 2017, the Administration rescinded the DACA program, which offered legal protections and work permits to undocumented immigrants who have lived in the U.S since they were children. The government stopped accepting renewal applications on October 5, 2017. If Congress does not act to provide a path to legal status for them, by March 6, 2018, an estimated 1400 DACA holders per day will lose their work permits and revert to being undocumented. This includes several hundred DACA recipients in Maine. This is not only cruel, but will harm our economy, as explained below.

What is DACA?

DACA (Deferred Action for Childhood  Arrivals) was a program created by President Obama on June 15, 2012. It allowed undocumented immigrants who entered the U.S. before June 15, 2007 as children or youth under age 16, who have grown up and were attending or had completed high school or obtained their GED here, to apply for temporary status (following background checks and paying substantial fees) so that they could go on to higher education, jobs, or military service following high school.  These were individuals who would gain a path to permanent resident status under the DREAM Act, a bill repeatedly introduced in Congress since 2001, were it to pass.  (DACA recipients are often called DREAMers, as a result.)

The Executive Branch carries out the immigration laws, and the Supreme Court has repeatedly recognized that Branch’s “prosecutorial discretion” in deciding whom it will deport.  With an estimated 11 million undocumented people in the U.S., the Obama Administration exercised prosecutorial discretion in offering protection from removal on a case-by-case basis (via individual applications) to the undocumented youth who would be eligible for permanent legal status under the DREAM Act, were Congress to pass it.

About 800,000 DACA holders must now hope that Congress will pass the Dream Act of 2017 (S.1615, H.R. 3440) or another permanent solution, so that they are not forced out of the mainstream and into the shadows, or worse, deported from the country that is their only real home, and that needs their talents.

USCIS released a revised Form I-9, Employment Eligibility Verification, on 7/17/2017. Among other changes, USCIS added the Consular Report of Birth Abroad (form FS-240) to the list of acceptable documents proving work eligibility.

The 11/14/16 version of the form may be used until 9/17/2017, but employers must use the newest version after that date.

• The Reforming American Immigration for Strong Employment (RAISE) Act, S. 1720.

The administration announced its support for the RAISE Act, S. 1720.   Introduced by Senators Tom Cotton and David Perdue and backed by President Trump, this bill would slash the overall number of immigrants to the U.S., chiefly by gutting immediate family immigration.   It would immediately reduce the total number of immediate family immigrants allowed each year by more than 40% from current levels, and eliminate most categories of family members presently eligible (including children who have have already turned 18, and parents, married children, and siblings of U.S. citizens). It would also eliminate the Diversity Visa lottery, and cap the number of refugees allowed in each year at 50,000.

The bill would create a new “points” system for employment-based immigration. Individuals with English fluency, post-graduate degrees in STEM or professional fields, younger workers, and those with high paying job offers or independent wealth to invest in the U.S. would be given the highest priority, although special points would also favor Nobel Laureates and Olympic individual medalists or other world class athletes.  Under the proposed points system, total employment-based visas would be capped at 140,000 annually, which is fewer than the number granted for each of the three most recent fiscal years for which there is complete data.

While the bill’s sponsors state it will strengthen our nation’s economy, there is broad opposition to that view from economists, business leaders, academics and others, including members of Congress on both sides of the aisle.  A small sampling of the early reaction to the RAISE Act:

The Bipartisan Policy Center

The Cato Institute:  here and here

The Council on Foreign Relations

New American Economy

Susan Martin, former Executive Director of the U.S. Commission on Immigration Reform

Various economists quoted in this Eduardo Porter piece in the NYTimes