Category: News

Immigrants have a centuries-long track record of entrepreneurial activity in the U.S. More than half of all U.S. start-ups of at least $1 billion in value had at least one immigrant cofounder, according to a 2016 study.  This holds true as well for over 40% of Fortune 500 firms who have at least one immigrant or a child of immigrants founder. Immigrant entrepreneurs are the backbone of a vibrant U.S. economy.

Unfortunately, the nation’s outdated immigration laws do not provide adequate avenues for immigrant entrepreneurs at the start-up stage. This shuts out not only entrepreneurs living abroad, but also foreign students who have attained advanced degrees, often in STEM fields, at U.S. universities, who want to innovate here rather than in their home countries.

Following repeated unsuccessful attempts to get meaningful immigration reform through Congress, the prior Administration crafted a new International Entrepreneur Rule (IER) to allow use of an existing program called “parole” as a vehicle through which international entrepreneurs could gain temporary legal status in the U.S. to launch new enterprises, on a case-by-case basis, if they met certain investment and other criteria. If their launch efforts were successful, they might later obtain permanent legal status under existing immigration laws.  The IER was scheduled to take effect on July 17, 2017.

On July 11, 2017, the new Administration published a final rule delaying implementation of the IER until March 14, 2018, and expressing its intent to rescind the IER altogether, following a notice and comment period ending Aug. 10, 2017.

Many organizations and individuals concerned with the economy expressed their disagreement with the new Administration’s stance, including the National Venture Capital Association,  and the Consumer Technology Association.

Rescission of the IER, absent Congressional action to dramatically improve our federal immigration statutes, will result in the U.S. losing talented entrepreneurs and job creators to other countries.

MeBIC Board President Mark St. Germain, Principal and Senior Scientist at St. Germain Collins, and Board Member Cathy Lee, Managing Partner of Lee International, speak out against efforts to cut immigrant eligibility for safety net General Assistance (G.A.) benefits from Maine’s state budget in this opinion piece published in the Bangor Daily News.

Under current law, only those who are legally here can get G.A. and only for a maximum period of 24 months.

G.A. is vital for asylum seekers in Maine who, despite being legally here, under federal rules cannot get their work permits until their asylum applications have been in process for 180 days.   They have no legal way to work to support themselves during this period.   Asylum seekers typically get jobs right after receiving their work permits, and they quickly repay the investment that Maine has made in them through the taxes they pay once they are working.

With Maine’s rapidly shrinking workforce, we need every last person who moves to Maine, whether from across the country, or around the globe, to stay and work in Maine.  G.A. helps asylum seekers do that.

As the op-ed points out, G.A. for asylum seekers is a short-term investment, with long-term economic benefits for Maine.

As of May 23, 2017, U.S. consular officers can ask certain visa applicants whom they feel need “more rigorous” screening to complete a new form requesting 15 years worth of address, employment, and travel history (including domestic travel in certain cases, and source(s) of funding); names and dates of birth of immediate family members, including children and siblings as well as former spouses or partners; and phone numbers, email addresses, and identifiers for all social media accounts going back 5 years.

Both nonimmigrant (temporary), and immigrant visa applicants may be asked to complete the form. According to the notice in the Federal Register, those who are from, who live in, or who have traveled to countries in which a U.S. consular officer believes terrorists are operating are more likely to be singled out to complete the new form. As a practical matter, this means visa applicants from the six countries identified in President Trump’s March 6, 2017 Executive Order, including Iran, Libya, Somalia, Sudan, Syria and Yemen, will be disproportionately affected, as will those who are from or have ties to other predominantly Muslim countries.

While in theory, completing the form will be voluntary, as a practical matter, failure to comply is likely to result in denial of the visa. Additionally, even in the best-case scenario, this level of “vetting” is likely to lead to visa processing delays. In the worst case scenario, innocent mistakes in completing the form could lead to visa denials. For example, a visa applicant who inadvertently omits a weekend trip taken more than a decade ago, or who gets the dates wrong on any travel or on moving from one address to another, or who forgets to list a no longer used social media account, will likely face a visa denial.  U.S. consular officers have complete discretion in their decision making, and there is no right to appeal a visa denial.

The new form has been approved for use through November 30, 2017, at which point the Department of State may request that its use be extended.

Impact for Maine businesses?      Because this form will likely be used with visa applicants from the six countries named above, many employees at Maine businesses who are originally from Somalia or Sudan, etc.  may experience delays or denials of their relatives’ immigrant visas.  This will cause considerable strain on affected families, as will the mere worry that their family members who are in the pipeline to immigrate could be denied their visas.  Nonimmigrants applying for visas to visit, study or work in the U.S. may also experience higher rates of visa denials as a result of the government’s decision to start asking for 15 years’ worth of detailed data.

The Portland Press Herald published a Maine Voices column today authored by David Vail, a retired Bowdoin College professor of Economics, with MeBIC’s Beth Stickney.  You can read the article here.  The op-ed notes that LD 1492, pending in the State Legislature, would provide funding for increased availability of English as a Second Language classes and other programs that will help immigrants more quickly contribute to Maine’s workforce and reach their full potential.

MeBIC has been following two recent bills closely.

LD 1492, An Act to Attract, Educate and Retain New Mainers to Strengthen the Workforce. Sponsor: Sen. Roger Katz

MeBIC’s position:   Support

This bill addresses Maine’s shrinking labor supply by recognizing immigrants as a critical part of the solution. It would provide funding to expand the availability of adult English as a Second Language (ESL) classes, to offer combined ESL and job training at worksites in public/private partnerships, to expand the New Mainers Resource Center model operating in Portland into the Lewiston-Auburn area, to provide funds for planning grants for communities experiencing growing influxes of immigrants to assess services needed to help reduce brain waste and accelerate immigrant integration, and to create a Cabinet-level Office of New Mainers with a broad advisory board to improve planning and coordination of initiatives to attract, retain and integrate immigrants in Maine.

Public hearing was held on May 10, 2017, where the bill received broad support (and no opposition) from Maine’s business community, including several MeBIC members, including the Maine State Chamber of Commerce, Coastal Enterprises, Inc., the Maine Healthcare Association, Barber Foods, Pro Search, Inc., Smith’s Farms, as well as from adult education providers, the Lewiston City Council, individual employers, and Maine residents. The Maine Innkeepers Association and the Maine Restaurant Association also submitted testimony supported key portions of the bill.

The bill now heads to work session.

 

LD 1307, An Act To Ensure Fair Employment Opportunity for Maine Citizens and Legal Residents

MeBIC’s position:   Oppose

This bill, as originally proposed, would have mandated that all Maine employers use the Federal E-Verify computer system in addition to the required use of the USCIS form I-9 to verify that new hires are authorized to work in the U.S. However, it would have required that employers use E-Verify in a discriminatory way that is illegal under Federal law.

At the work session on May 4, 2017, the bill’s sponsor, Rep. Phyllis Ginzler, introduced substitute language that would require all public employers in Maine, and any businesses, and their subcontractors, who contract to do work in Maine for them, to use E-Verify for all new hires. Following amendment review, this bill will head to the House floor for a vote.

MeBIC opposes this bill because:

1. This is a solution in search of a problem. There is no allegation or evidence that Maine employers are not complying with the federal requirement requiring new hires to prove their eligibility to work in the U.S. using the USCIS I-9 form.
2. E-Verify is costly for businesses. Enrollment in E-Verify is free, but it is costly to use. In addition to going through the usual I-9 process, employers must accurately input every new hire’s name, email address, date of birth, Social Security number, and presented document type and number into the E-Verify web-interface.   In many cases employers must also compare the photo on the new hire’s ID document to the photo, which may be as much as 10 years out of date, that USCIS has in its database.   Maine employers who have signed up for E-Verify have found it significantly increases the man-hours involved in the HR process, and that is if all goes well.   If the system reports a “tentative nonconfirmation” (TNC) of work authorization, the employer must first ensure it has not made a data entry error.  If data entry was not the issue, the employer must notify the employee of the TNC.  The employee must then go to the nearest Social Security or Department of Homeland Security office (for employees throughout Maine, the only DHS office is in Portland) to try to clear up the error.   Sometime repeated trips are needed before the error is resolved, resulting in lost hours of work and productivity.  The Congressional Budget Office (CBO) found that nearly half of all workers with TNC’s lost a partial or full day of work, and 14% lost more than two days of work correcting the TNC.  The CBO estimated in 2013 that mandated use of E-Verify nationwide would cost over $600 million in three years, just for private sector employers.   Bloomberg found that small business owners who used E-Verify in 2010 spent $81 million on it.
3. E-Verify has too many flaws for its use to be mandated by Maine law.   When E-Verify was originally created, Congress wanted to mandate it for all U.S. employers.   After the Social Security Administration, upon whose data E-Verify relies, testified in Congress about errors in its database, E-Verify was launched instead as a pilot project.   Problems surfaced as E-Verify rolled out, including U.S. citizens and other legal workers being ruled unauthorized to work. Over time, E-Verify errors have decreased, but have not been eliminated.   As a result, as recently as Congress’s 2015-2016 session, bills to make E-Verify mandatory nationally failed.

Congress has wisely kept enrollment in E-Verify voluntary except for certain federal contractors.   Maine should not burden public employers and the businesses that do contract work for them by mandating  use of the costly and flawed E-Verify system.

With only five months remaining in the fiscal year, Congress finally enacted the FY 2017 spending bill,  signed into law on May 5, 2017.   Not included in the Consolidated Appropriations Act of 2017 were funds for  building new sections of “the Wall” on our border with Mexico.

However, the bill did include many immigration provisions, including an additional $430 million for increased immigration detention capacity and removal expenses, despite  monthly border apprehension rates being at their lowest level in over six years.

Of relevance in Maine, the appropriations bill also included language allowing the government to increase the cap on the number of available H-2B seasonal non-agricultural visas that are used by many of Maine’s seasonal businesses in the hospitality/tourism sector, potentially from the existing 66,000 per year to over 154,000.  Unfortunately this fix is coming too late to supply the workers needed for the start of Maine’s 2017 summer tourist season.   More details on the H-2B provisions are here.

 

The Consolidated Appropriations Act of 2017, signed into law on May 5, 2017,  contains provisions attempting to fix the problem of employers being left without sufficient workers due to the cap on the number of available H-2B seasonal non-agricultural visas.    As noted in an earlier post, the 33,000 cap for summer season H-2B visas was reached in early March, leaving Maine’s seasonal employers whose applications were not already filed by then high and dry.

Sen. Angus King had previously introduced a bill, which Sen. Susan Collins cosponsored, that would have exempted “returning workers” – those who had come to the U.S. on an H-2B previously and would be returning to work for the same employer – from the H-2B visa cap.  That approach was not adopted in the spending bill.    The American Immigration Lawyers Association (AILA) summarized the relief enacted:

“While this bill does not include the returning worker exemption, it includes a provision that could allow DHS to increase the H-2B cap and thereby provide limited relief to businesses using the H-2B program. 
The bill allows DHS, in consultation with DOL, to increase the H-2B cap by not more than the highest number of H–2B nonimmigrants who participated in the returning worker program in any year in which returning workers were exempt from such numerical limitation. To trigger this increase, however, the two agencies must determine there are not sufficient U.S. workers 
able to fill the available positions. Although the total H-2B visa issuance number for FY2016 is unavailable for comparison, the highest number of H-2B workers admitted to the US when the H-2B returning worker exemption was in place (FY2005-7) likely refers to the number admitted in FY2007, 154,895….. (The bill also) changes the definition of ‘temporary need’ from a fixed 9 month period to a period of ‘one year or less,’ which DOL has generally capped at 10 months.”

Unfortunately, the bill includes new requirements that may put any additional H-2B visas out of reach, including compelling many employers to begin their summer hiring recruitment process all over again, and making all employers attest that they will suffer irreparable, permanent harm without the planned H-2B staff.

In addition, the process the Department of Homeland Security (DHS) and Department of Labor (DOL) must follow is unlikely to result in Maine’s seasonal employers getting visas for the workers they need in time for the start of Maine’s summer 2017 tourist season.

On April 7, USCIS confirmed that the cap for H-1B visas for FY 2018 (starting October 1, 2017) had been reached.  This is the 5th year in a row that all 85,000 cap-subject visas have been exhausted within a week of the April  1st initial filing date.   Petitions that could not be accepted due to the cap will be returned with their accompanying filing fees to the petitioners.

USCIS has confirmed to the American Immigration Lawyers Association that if, during the week of April 3-7, 2017, it receives enough petitions to exhaust the statutory annual H-1B visa limits, the petitions will be selected for processing by lottery.

As in recent years, petitions for the 20,000 Master’s degree cap exempt visas will be randomly selected by lottery first. Any Master’s degree petitions not selected then will be combined with the other H-1B petitions subject to the 65,000 annual cap, for selection to be processed by lottery.

USCIS has announced that they have received enough petitions for H-2B seasonal, non-agricultural nonimmigrant workers to reach the annual limit for FY2017.   That means that with limited exceptions, no H-2B petitions filed by employers after March 13, 2017 for seasonal jobs starting prior to October 1, 2017 will be accepted by USCIS.

Only 33,000 H-2B visas are available annually for spring/summer seasonal employees from abroad, for the entire country, and those visas are being exhausted earlier each year.  The cap for FY 2015 was reached in June of that year, and last fiscal year’s cap was reached in May.   With visas running out a full two months earlier this year than last, the H-2B visa program is becoming an increasingly unworkable solution for seasonal non-agricultural employers, such as the hospitality industry in Maine.

Maine employers who need seasonal foreign workers to supplement their staff during the spring/summer whose H-2B petitions were not received by USCIS by March 13, 2017, should see whether one of the exceptions to the cap applies.  The USCIS announcement and specified exceptions can be found here.

 

Two Federal District Courts in Hawai’i and Maryland have temporarily blocked portions of President Trump’s most recent Executive Order (EO) that was due to take effect today.    The ban on visa issuance to and entry into the U.S. of citizens from Iran, Libya, Somalia, Sudan, Syria and Yemen, and on the entry of refugees from any country, cannot take effect as the challenge to the EO makes its way through the Courts on the merits.  The Courts found that the plaintiffs had a likelihood of success of proving that the travel ban is unconstitutionally based on religion, due to statements made by President Trump and his administration during the campaign and before and after issuance of the first EO travel ban issued on Jan. 27, 2017.

Note that other parts of the EO were not enjoined from taking effect, such as the requirement for in-person interviews for all non-immigrant visa applicants (from any country), including those who previously may not have had to attend an in-person interview.

How does this effect Maine businesses?

• Any employees (whether naturalized U.S. Citizens, permanent residents, or nonimmigrant visa holders) from the six named countries should be advised to expect a heightened level of questioning at U.S. ports of entry following any travel abroad, despite the injunction preventing the EO’s travel ban portions from taking effect.   They should be advised to consult with a competent immigration attorney before traveling abroad.
• If you have immigrant employees from any of the six named countries or who entered the U.S. as refugees, be aware that there is still a high level of fear and concern that their relatives whom they were expecting to immigrate soon may not be able to come.
• 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.

For further information:  Contact your business’s immigration attorney, or Beth Stickney at bstickney@mainebic.org

The Pew Research Center reported on March 8, 2017 that immigration will be the source of most of the growth of the working age population between now and 2035.  U.S. born children of immigrants will be an important factor as well.   Without immigrants and their children, the U.S. workforce would be contracting.   Pew’s conclusions echo the conclusions about the role of immigrants’ in counteracting Maine’s shrinking labor supply made in separate reports issued in 2016 by Coastal Enterprises, Inc. and jointly by the Maine Development Foundation and the Maine State Chamber of Commerce.  See Pew’s report here.