By: Cristina Perez, Esq.
It seems that immigration, or a topic related to immigration, is mentioned in the media almost every day. This may be because the area of immigration law, while continually changing, is a fixed “focus” of the current administration. It is almost impossible to keep up with the constant government reports, policy changes, updates and related matters. This Alert seeks to provide a brief synopsis of recent immigration issues that will affect employers, employees, professional workers, and business owners.
Premium Processing Fee Increase
On August 31, 2018, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it will increase the premium processing (15-day expedited processing) filing fee by 14.92 percent, effective October 1, 2018. The premium processing fee will increase from $1,225 to $1,410. This fee has not increased since 2010. USCIS supports its decision to increase this fee due to inflation and in order improve adjudications and service processes for all petitioners, as it is experiencing a significantly higher demand for immigration benefits.
Employers and professionals should expect delays in processing of applications; carefully analyze employee’s authorization to work, if applicable, and file extensions in a timely manner; and budget accordingly.
USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions
On August 28, 2018, USCIS announced that it is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, 2018, will be expanding this temporary suspension to include all H-1B petitions filed at the Vermont and California Service Centers, except for certain cap-exempt filings as noted in the announcement. The suspension is expected to last until February 19, 2019.
In other words, the suspension of premium processing for H1B cap cases (those H1B petitions filed in the lottery) remains in place. Again, employers and professionals must expect delays in processing and are encouraged to carefully determine a foreign employee’s authorization to work.
The current administration has implemented policies that will undermine the independence of immigration judges and weaken due process in the immigration court system. Immigration courts play a key role in affording non-citizens an opportunity to present claims for relief and stay in the United States. The changes adopted by the Department of Justice (“DOJ”) since last year, including steps to impose numerical quotas on immigration judges and attempts to curtail procedural safeguards, continue to threaten the integrity of the immigration court system.
Preserving the Deferred Action for Childhood Arrivals Act (“DACA”)
In response to a lawsuit by ten states requesting to end DACA, on August 31, 2018, a Federal Judge in Texas declined to issue a preliminary injunction halting DACA. The Court found that “the States had delayed seeking this relief for years, that the balance of private interests fell in favor of the denial of the requested relief, and that implementing the relief at this point in time was contrary to the best interests of the public.” Applicants may continue to extend DACA applications with USCIS.
USCIS Guidance on Request for Evidence (“RFE”) or a Notice of Intent to Deny (“NOID”) will take effect on September 11, 2018
On July 13, 2018, USCIS issued new guidance regarding adjudicator discretion to deny a request for an immigration benefit without first issuing an RFE or NOID. Prior USCIS policy limited adjudicators’ ability to deny a case without first giving the applicant or petitioner an opportunity to respond if initial evidence was missing or if the evidence submitted fell short of the applicable standard of proof. The new policy makes it easier for USCIS to deny an application or petition without first issuing an RFE or NOID, by restoring “full discretion” to do so. For example, rather than giving the person the opportunity to correct what might be a simple filing error, adjudicators can deny a benefit if any of the required initial evidence is missing from an application. All applicants and petitioners who file immigration benefit applications with USCIS will be impacted.
Applicants now face harsh consequences in the form of a denial of their immigration benefit application if they inadvertently make an innocent mistake on their application or misunderstand an evidentiary requirement. When you couple this new policy with a June 28, 2018 memo mandating USCIS to issue Notices to Appear (“NTA”), which is currently postponed, even more individuals could be shuttled into immigration court removal proceedings if they are no longer maintaining status at the time of denial.
Employers and applicants are encouraged to seek legal immigration assistance in preparing all applications submitted to USCIS.
The Future of the North American Trade Agreement (“NAFTA”) is in Doubt
While the U.S. and Mexico have seemingly potentially agreed to terms for a new trade agreement, the third and arguably essential party this treaty, Canada, has not fully come to the table. While details and expectations are unknown, the potential risks of the U.S. withdrawing from this trade agreement could have resounding affects, not only in immigration, but across the U.S. and global economies. According to the Business Roundtable, ending NAFTA could result in 1.8 million U.S. jobs lost in the first year and potentially permanently depress U.S. Gross Domestic Product by more than 0.2%. We will keep you updated in the progress of NAFTA re-negotiations.
The Immigration and Customs Enforcement (“ICE”) branch of the Department of Homeland Security (“DHS”) continues to increase employment verification operations throughout the nation. According to ICE, since January 2018, it has already delivered more than 5,200 audits notices to businesses across the U.S. (compared to 1,360 audits in all of 2017) in a two-phase nationwide operation. For example:
- On August 29, 2018, ICE arrested 364 individuals during a thirty-day enforcement operation in the following midwestern states: Illinois (134), Indiana (52), Kansas (43), Kentucky (60), Missouri (42), and Wisconsin (33).
- On August 28, 2018, ICE arrested approximately 160 foreign nationals in a massive worksite raid conducted at Load Trail in Sumner, Texas. On August 28, the Dallas Morning News reported that Load Trail began as a family-owned business in 1996 and has grown to employ more than 500 people on its 100-acre site. In 2014, the company paid a $445,000 fine for hiring undocumented immigrants to work at the plant.
- On August 13, 2018, ICE arrested 45 individuals in the Houston, Texas area during a five-day operation.
- On August 9, 2018, ICE arrested 133 workers during workplace raids in Nebraska and Minnesota.
Employers are encouraged to carefully complete all I-9 forms and to conduct periodic self-audits to remain compliant.
If you have any questions regarding USCIS policy changes or any immigration issue affecting an employer, please contact Cristina Perez. Cristina is Chair of Leech Tishman’s Immigration Practice Group, and a Partner in the firm’s Corporate Practice Group. Cristina is based in the firm’s Pasadena office and can be reached at 818.550.8300 or firstname.lastname@example.org.
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