General information

Attorney General Jeff Sessions announced Tuesday that the Trump Administration will end the Deferred Action for Childhood Arrivals Program, or DACA, on March 5, 2018. The DACA program, which President Obama enacted by executive action in 2012, protects approximately 800,000 people who were brought to the United States as children without legal immigration status. In addition to protections from deportation, DACA status also provides these individuals with employment authorization.

As of Tuesday, the Department of Homeland Security will no longer accept new initial DACA applications, though previously approved DACA applications will remain in effect through their current expiration date. Individuals whose DACA status will expire before March 5, 2018 will be allowed to apply for a 2-year renewal as long as the renewal application is submitted by October 5, 2017. Currently pending applications which were received by Tuesday, September 5 will still be adjudicated on a case-by-case basis.

Additionally, DHS will no longer accept requests for advanced parole for DACA recipients, though previously issued advanced parole documents will remain valid. Currently pending requests for advanced parole will not be adjudicated, and fees will be returned to the applicants. Although previously approved grants of advanced parole remain valid, Customs and Border Protection will continue to exercise discretion to determine if individuals presenting at the border are in fact admissible and eligible for parole.

The six month timespan from today until March 5, 2018 will provide Congress an opportunity to enact protections for DACA recipients prior to the program’s termination, but the likelihood of Congress passing such legislation remains uncertain.

Beginning October 1, USCIS will expand the in-person interview requirement to include two new categories of permanent resident applications. The in-person interview requirement will extend to include applicants filing for employment-based adjustment of status, as well as refugee and asylee relative petitions for beneficiaries already in the United States. Notably, both categories are applicants who are physically present in the United States, having already passed comprehensive background checks and U.S. Customs and Border Protection screening.

The expanded interview requirement is an effort to implement President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which suspended the U.S. refugee program, banned entry into the U.S. for foreign nationals of six predominantly-Muslim countries, and called for increased scrutiny in background checks for all immigration programs. USCIS states that although the interview requirement will only extend to two new categories for now, the agency plans an incremental expansion to include other types of immigration benefits in the future.

In an unannounced dramatic change in policy, USCIS has changed how it is handling advance parole applications for adjustment applicants in H or L status.

Previously those applicants with H or L status could freely travel after their adjustment of status application was filed and their application for advance parole was pending with USCIS. Such individuals would return to the U.S. in H or L status and then their advance parole travel document would be approved so that on their next trip they could use advance parole to travel internationally.

USCIS has changed its policy. Adjustment of status applicants may continue to travel if they have H or L status.  However, any adjustment of status applicant who travels while the advance parole application is pending at USCIS will have the advance parole application denied.  Therefore, if an adjustment of status applicant wishes to travel on advance parole, he or she must apply for advance parole and wait until it is approved before leaving the United States.  As always, it is required that the person traveling on advance parole return to the United States during the validity period of the advance parole.

Stated another way, adjustment of status applicants in H or L status have the following options regarding travel:

• Travel in H or L status while the adjustment of status application is pending; or
• Apply for advance parole understanding that you cannot travel until your advance parole is approved. Were you to travel on your H or L visa while your advance parole application remains pending, the advance parole would be denied.

As of September 18, 2017, employers must use a revised Form I-9 (rev. 7/17/17) to verify new employee work eligibility.  The revised document is available here:  www.uscis.gov/i-9. You will also find a copy attached, with the changes highlighted.

This most recent revision was released just six months after employers were required to begin using the 11/14/16 version of the form. We have no idea why USCIS initiated the change.  The good news is that the new form is very similar to the old form.  The bad news is that they both have the same expiration date, so you must pay close attention to the revision date in the bottom left corner to ensure you are using the correct Form I-9.  The new version  date is 07/17/17.

Can I keep using the old form?

No, beginning September 17, 2017, employers must use the new form for any new hires; however, current employees do not need to complete new forms.  Keep the forms you already have for current employees and use the new form for new hires.

What has changed?

The list of acceptable documents to establish employment authorization (“List C”) has been revised and reorganized. In addition, the Consular Report of Birth Abroad (Form FS-240) has been added to that list.  These changes have been highlighted in the attached I-9 form.

Additionally, there are minor revisions to the instructions although they should not affect employer practices. The Handbook for Employers was also revised.  You can obtain the latest version at:  https://www.uscis.gov/i-9-central/handbook-employers-m-274

How long do I keep the form?

The required retention period remains unchanged. Employers must keep the form for the later of three years after date of hire or one year after date of termination.

Feel free to give us a call if you have any questions about the Form I-9 or work eligibility verification.

About the H-2B

The H-2B visa is for seasonal, non-agriculture workers. These types of jobs include those at resorts, landscaping companies, and seafood harvesters. Only nationals of certain countries are eligible for an H-2B visa. The list of eligible countries can be found on USCIS’s website here.

The statutory annual limit is set at 66,000. Half are granted to those who start work between October and March, and the other half are granted to those who start work between April and September. Certain individuals are exempt from the cap.

Shortage of workers and cap increase

Many seasonal businesses have noted a shortage of Americans willing to do these jobs and sought permission to hire more immigrants. Just in March of this year, NPR released a story discussing how the cap had already been reached and resort towns in Maine were worried about their ability to find workers for their peak season.

In response to these concerns, earlier this year Congress voted to allow Homeland Security to offer up to 70,000 additional visas as a “one-time extension.” This week, the administration announced it would be offering an additional 15,000 visas to “help American businesses in danger of suffering irreparable harm because of a shortage of such labor.”

Process for applying for an H-2B

To apply for an H-2B visa, the employer must submit a petition and show that there (1) there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, (2) employing an H-2B worker would not adversely affect the wages and working conditions of similarly employed U.S. workers, and (3) its need for the prospective worker’s services or labor is temporary (based on a one-time occurrence, a seasonal need, a peakload need, or an intermittent need).

On June 8, 2017, we posted about USCIS’s suspension of the H-1B premium processing option, an option which had allowed for an expedited review process. The suspension was put in place to allow for USCIS to clear its backlog of pending petitions; however, many argued that it would have a severe negative impact on industries that rely on foreign workers.

On June 26, 2017, USCIS resumed premium processing of H-1B petitions filed for medical doctors under the Conrad 30 program and those filed under interested government agency waivers.

The Conrad 30 program allows foreign born doctors to stay in the U.S. after completing their medical training to work in areas that have shortages of physicians. These communities have come to rely on foreign doctors. In his statement announcing the resuming of premium processing, the USCIS Acting Director affirmed that “[the Conrad 30] program improves health care access for Americans living in underserved areas.”

The suspension of premium processing still applies to all other H-1B case types; however, USCIS states that it will resume the process “as workloads permit.”

Last month, by a vote of 12-0, the Denver City Council approved a reform to the city’s low-level court sentences to reduce some of the maximum penalties.

Though Mayor Hancock stated that the reforms were long overdue, they were also made, in part, to help immigrants avoid deportation. When noncitizens get convicted of a crime that carries a potential penalty of at least a year in jail, they can be put on Immigration and Customs Enforcement’s radar. Regardless of the sentence they actually receive, the maximum sentence of certain crimes can make a noncitizen deportable.

The sentencing reform splits violations of city ordinances into three categories depending on the severity of the crime. The most serious seven crimes still carry a maximum of a year in jail and a $999 fine. The next category is reserved for midlevel offenses, such as trespassing and shoplifting. These crimes carry up to 300 days in jail and a $999 fine. The last category is for petty crimes, which carry up to 60 days in jail and no fine. Petty crimes include public urination, curfew violations, and panhandling. 

The reform also adds a “hate crime enhancement” that will allow prosecutors to ask for a boost of lower-tier offenses to the top level if the crime was motivated by a specific attribute, such as race, religion, or sexual orientation.

More serious, state level crimes tried in district court are not be impacted by these reforms. Only those violations that are tried in Denver County Court are affected.