General information

On Thursday, the Bureau of Labor Statistics, a division of the U.S. Department of Labor, released a report on labor force characteristics involving foreign-born workers.  According to the report, foreign-born workers now account for 17.4% of all U.S. employees, which is the highest percentage ever recorded since the U.S. Department of Labor began tracking the statistic two decades ago.  In 2000, the share of the labor force that was foreign born was 13.3 percent.

The report defines “foreign-born” individuals as those who reside in the United States but who were born outside the United States and neither parent was a U.S. citizen.  Foreign-born individuals include legally-admitted immigrants, refugees, temporary residents such as students and temporary workers, and undocumented immigrants.

Among other highlights in the report is that foreign-born men participate in the labor force at a rate over ten percentage points higher (77.9 %) than native-born men (67.3%).  Additionally, the median weekly earnings of foreign-born full-time workers ($758) is significantly less than the median weekly earnings for native-born workers ($910).

The difference in earnings reflects several factors including differences in education levels, occupation, industry of work, and geographic region.  As for education levels, the proportion of the foreign-born labor force age 25 and over that had not completed high school was 21.2 percent in 2018, much higher than the figure for the native-born labor force, at 4.1 percent.

While native-born workers earn more than foreign-born workers at most educational attainment levels, there is a relatively small gap between the earnings of foreign-born and native-born workers who have a bachelor’s degree and higher.  Among those with a bachelor’s degree and higher, the earnings of foreign-born workers ($1,362) were actually slightly higher than the earnings of native-born workers ($1,309).

On April 16^th, Attorney General William Barr issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), overturning a Board of Immigration Appeals (BIA) decision that had been the governing law for the last fifteen years.  Previously, some noncitizens who were transferred to “full” removal proceedings from “expedited” removal proceedings, based on a finding that they had a credible fear of persecution or torture, were eligible to be released from detention on bond.  Only some aliens so transferred, and those who remained in expedited proceedings, faced mandatory detention until their case was fully resolved.  Specifically, the BIA had ruled that “arriving” noncitizens, such as those coming into the U.S. at a port of entry, must be detained, but all other transferred noncitizens were eligible for bond.

The Attorney General’s new decision reversed the BIA’s ruling.  Now, unless paroled under INA §212(d)(5)(A), all noncitizens transferred from expedited to full removal proceedings based on a credible fear finding face mandatory detention until their asylum claim is decided; a process that can last months, or even years.

Notably, Matter of M-S- does not apply to unaccompanied minors nor families with children.  Under a 1997 decision, Flores v. Reno, often called the “Flores Agreement,” unaccompanied minors and families with children cannot be held beyond 20 days if they clear the credible fear screening.

Pending litigation on the constitutionality of holding noncitizens in mandatory detention beyond six months could prevent the change from going into effect, but barring an injunction, Barr’s decision will go into effect in July.  If the change goes into effect, it would tax an already heavily burdened court system and put new pressures on Immigration and Customs Enforcement (ICE) detention centers.  The Washington Post reports that detention centers run by ICE are holding a record 50,000 migrants, more than Congress has authorized, and some 400 immigration judges face a backlog of over  800,000 cases, which means that new cases are regularly scheduled for 2021 and beyond.

This latest development has added to the number of people calling for an independent court system outside of the Justice Department.  As the current immigration courts are part of the Justice Department, the Attorney General can unilaterally overrule cases that have been decided by the BIA.

In the latest edition of its Immigration Trends Report, the immigration firm Envoy Global says that up to 95% of United States employers believe that foreign nationals are important to their company’s talent acquisition strategy.  The report gathered responses from over 400 human resources professionals and hiring managers.  80% of employers said that, when compared to last year, they expect their foreign national headcount to either increase or stay the same.

Foreign workers are especially important in the science and technology fields; while less than 1% of all U.S. jobs are performed by foreign workers, they account for over 12% of all tech employees.  William Kerr, a professor of business administration at Harvard Business School, noted in the report that “immigrant talent now accounts for one in every 3.5 inventions in America, a dramatic growth from the 1970s, when foreigners contributed one in 12 patents.”

While U.S. companies rely on immigration for their future success, they are also reporting that the immigration process has become more difficult for them; 47% of respondents said their company’s visa application process has become more difficult compared with earlier years.  Envoy Global CEO, Richard Burke, reports that employers “confronted material increases in requests for evidence (RFEs), case denials, site visits, and new policy memos.”  Overall this has resulted in “heightened anxiety and uncertainty among foreign nationals, HR professionals and hiring managers.”  When asked whether RFEs had increased for their employees over the last five years, over half of respondents said yes.  RFEs are notices that agency officials send to applicants seeking more information for their applications, even after an application has been finalized and submitted to the agency for processing.  The report’s findings align with other data which shows that the share of RFEs issued for H-1B cases jumped to 60% in late 2018, a large increase from the 28% in the same period two years prior.

According to current and formal officials and an internal memo, U.S. Citizenship and Immigration Services (USCIS) is planning to close oversees offices that currently handle family visa requests, international adoptions and other tasks.  According to people with knowledge of the meeting, the director of USCIS, L. Francis Cissna, told senior staff members this week that the international division, which has 24 field offices in 21 countries, would close down by the end of the year.

USCIS Spokeswoman Jessica Collins confirmed that the agency “is in preliminary discussions to consider shifting its international USCIS office workloads to USCIS domestic offices in the United States and, where practicable, to U.S. embassies and consulates abroad.”

Officials at USCIS claim that closing the international field offices would save millions of dollars each year, but as Enrique Gutierrez and John Santos, media directors at the Democratic National Committee, said in a statement “the administration’s explanation that the move is an effort to cut government spending does not hold up since USCIS’s funding comes primarily from fees paid by people who use its services.”  Agency officials also claim that the move is intended to provide more staff resources to handle the backlog of asylum applications.

The international field offices currently provide, among other things, logistical assistance to U.S. Citizens, lawful permanent residents, and refugees seeking to bring family members to the United States, asylum seekers who wish to come to the U.S., Americans who adopt children internationally, and members of the military and their families applying for citizenship.

For the second year in a row, the number of international student applications and enrollment in U.S. institutions has declined. Based on a survey of 240 institutions who contributed data for both 2017 and 2018, the Council of Graduate Schools (CGS) reports that the overall number of graduate applications from prospective international students fell by 4%.  Between 2016 and 2017, the number of applicants had fallen by 3%.  While the number of doctoral applications increased by 1% between 2017 and 2018, the overall decline was driven by a 6% decline in master’s applications.

In a February 7^th press release, CGS President Suzanne Ortega noted that “This is the first time we’ve seen declines across two consecutive years, and while we think it’s too soon to consider this a trend, it is troubling.”  While the survey report does not reach any conclusions as to the reason for the decline, the CGS President pointed to “issues, including changes in immigration and visa policy, with growing concern over the possible negative impact to the U.S.’s image as a welcoming destination for international students and scholars.”

Many commentators attribute the decline to increasingly burdensome U.S. immigration policies. One such change rescinded a 2013 policy which required USCIS adjudicators to request additional information from applicants before denying applications. The new policy gives USCIS adjudicators “full discretion to deny applications, petitions, or requests” without seeking additional information.

Another policy change is particularly worrisome for F-1 student visa holders, the most popular student visa. One of the statutory bars to future admissions into the U.S. is known as the “unlawful presence” bar.  Any alien who accrues more than 180 days, but less than a year of unlawful presence is prevented from re-entering the U.S. for three years.  Those who accrue a year or more of unlawful presence are barred from re-entry for ten years.  Previously, F visa holders started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed.  Under the new policy, F visa holders now start accruing unlawful presence the day after they no longer pursue a course of study, or the day after they engage in an “unauthorized activity.”  This means that international students could start accruing unlawful presence without ever having been formally notified that they are doing so.  These policy changes may be creating a chilling effect on international students’ decision to come to the U.S. for education.

On Wednesday, the Trump administration’s proposed rule for eliminating the H-4 EAD was submitted to the Office of Management and Budget (OMB) for review.  The administration had previously published an agenda item in December of 2017 titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, indicating their intent to remove the current H-4 employment authorization document (EAD) rule that has been in place since 2015.

The Obama administration created the H-4 EAD program to allow the spouses of certain H-1B skilled workers to be employed while in the U.S.  The H-4 EAD has been particularly important for families that are awaiting approval for permanent residency.  Without the H-4 EAD, these dependent spouses cannot work in the U.S. until they receive green cards, a process which can often take many years, especially for immigrants from countries like India and China that send a lot of high-skilled talent to the U.S.  Since the rule went into effect, more than 90,000 spouses have been approved for work permits.  More than 90 percent of those who would be affected by the removal of the program are women.

Once the OMB reviews the proposed rule, it will be published in the Federal Register.   Upon publishing, a comment period occurs after which the administration must review the comments and make any necessary revisions before the rule is finalized.  Litigation could potentially delay the rule for months or years longer.  The proposed rule has not escaped the attention of Congress where a bill was introduced in the House of Representatives called the “H-4 Employment Protection Act of 2018” (H.R.7150) which seeks to protect the program.

A federal district judge in Seattle has ordered the Defense Department to stop discriminating against naturalized citizens who volunteered to serve in the U.S. Army under the Military Accessions Vital to the National Interest (MAVNI) program. The MAVNI program was created in 2009 to attract immigrants with specialized skills such as critical foreign language skills or specialized healthcare training in exchange for an accelerated path to citizenship.  NPR’s Richard Gonzales reports that “[m]ore than 10,000 soldiers have served in the U.S. military through the MAVNI program.”

However, the program was frozen in 2016 due to security concerns. The Department of Defense has required MAVNI participants to undergo “continuous monitoring” which includes security checks every two years, even after discharge if the participants worked for the government or government contractors. No person affiliated with the DoD, other than MAVNI participants, was required to undergo such checks absent particularized suspicion.

The plaintiffs, 17 naturalized citizens who enlisted through the MAVNI program, argued that the increased scrutiny represented unconstitutional discrimination based on national origin. The Pentagon argued that the ongoing security checks were necessary for national security and that they were not based on the plaintiff’s national origin, but on the manner in which they enlisted into the Army.

Judge Thomas Zilly noted however, that the “defendant’s witnesses acknowledged that no MAVNI soldier who has become a naturalized citizen has ever been charged or convicted of espionage or any other criminal offense or been denaturalized.” Judge Zilly found that the evidence in the case “shows that the DoD was aware of the equal protection violations that would arise if naturalized MAVNI soldiers were treated differently from other citizens, but it nevertheless persisted in the discrimination.”

On November 30, 2018 the Department of Homeland Security (DHS) announced a proposal to amend the regulations regarding the allocation process for H-1B cap-subject petitions. Under the proposed rule, all U.S. employers seeking to file H-1B cap-subject petitions would need to first electronically register with U.S. Citizenship & Immigration Services (USCIS) during a designated registration period. USCIS would then conduct a lottery from the pool of electronic registrations, and only those selected would be eligible to file a petition for adjudication.

The number of visas available under the H-1B program is capped at 65,000 annually, with certain employers and petitions being exempt from this cap. An additional 20,000 visas are reserved for individuals who hold advanced degrees from U.S. higher education institutions. Because demand for visas far exceeds the number of visas available, a lottery system has been used to determine which petitions are selected for processing.

Along with requiring electronic registration, the new proposal would also reverse the selection process. Under the proposed rule, all qualified registrants would participate in the lottery to fill the regular 65,000 cap first, and then those not selected who hold advanced degrees would participate in the lottery for the advanced degree cap.

If the rule is finalized as proposed, but there is insufficient time to implement the new registration system in time for the opening of the Fiscal Year 2020 H-1B cap filing season on April 1, 2019, USCIS has announced that it would likely suspend implementation of the new registration system.

This rule is a proposal only and is not yet in effect. The attorneys at Stern & Curray will continue to monitor the situation and keep you informed.

On November 9, 2018 President Trump issued a presidential proclamation that, in conjunction with a joint interim final rule issued by the Department of Homeland Security and the Department of Justice, bars individuals from seeking asylum who enter outside of designated ports of entry at the U.S. – Mexico border. Under this “asylum ban,” only those individuals who cross the border at legal checkpoints would be eligible to apply for asylum. Those who enter elsewhere would only be eligible to apply for more limited forms of relief, withholding of removal or protection under the Convention Against Torture (CAT). These protections are more difficult to obtain than asylum and provide fewer benefits. In contrast to asylum, withholding of removal and protection under CAT do not provide an opportunity for individuals to apply for permanent residency.

Soon after the proclamation was issued, several groups filed lawsuits challenging the ban.  On November 19, 2018, Judge Jon S. Tigar of the U.S. District Court in San Francisco ordered a temporary injunction on the implementation of the asylum ban, reflecting his conclusion that the plaintiffs challenging the ban were likely to succeed on the merits of their claim. The temporary injunction will remain in effect until December 19, 2018 when the court considers arguments for a permanent order.

The United States Citizenship & Immigration Service (USCIS) recently issued a reminder to F-1 students with pending H-1B petitions that work authorization for those students in “cap-gap” status is valid only through September 30, 2018. Any student in cap-gap status with an H-1B petition that remains pending on October 1, 2018 should not work on or after this date.  As USCIS  explained, an F-1 student with a pending change of status petition who has work authorization (such as an I-765 with valid dates) that extends past Sep. 30^th may continue to work as authorized.

Under the regulations, an F-1 student who is the beneficiary of an H-1B petition subject to the cap, and who is requesting a change of status to H-1B on Oct. 1^st, may have his or her F-1 status and current employment authorization extended through Sep. 30^th. Known as the “cap-gap,” this mechanism allows for the “gap” to be filled between the expiration of a student’s F-1 status and the beginning of his or her H-1B status.

As USCIS previously announced, premium processing is temporarily unavailable for cap-subject H-1B petitions. The suspensions are anticipated to last through February 2019.

If you have question regarding how this information may affect your situation, call us today to schedule a consultation with an experienced immigration attorney.