Immigration News

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.

Department of Homeland Security (DHS) Secretary John Kelly signed a memorandum on June 15, 2017 keeping in place the Deferred Action for Childhood Arrivals (DACA) program but ending the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The administration references the fact that DAPA was never implemented and stricter immigration enforcement priorities as reasons for the shift in policy. A press release states, “there is no credible path forward to litigate the currently enjoined policy.”

DAPA, the Obama era policy, was first announced on November 20, 2014 when then Secretary of DHS Jeh Johnson expanded the DACA policy to include parents of Americans and lawful permanent residents. The policy directed the United States Citizen and Immigration Services to establish a process for exercising prosecutorial discretion through the use of deferred action. On a case-by-case basis, the policy allowed for individuals who have no lawful status, have U.S. born children, and have been in the country since before January 1, 2010 to be lawfully present in the United States.

The DAPA program was challenged in court by twenty-six states in the Unites States District Court for the Southern District of Texas, which enjoined the program. The United States Circuit Court of Appeals for the Fifth Circuit affirmed the preliminary injunction and the United States Supreme Court, in a 4-4 ruling, left the lower court’s ruling in place.

The DACA program allows certain people who came to the United States as children, and who meet certain criteria, to request consideration of deferred action for a period of two years and they may be eligible for work authorization. While the DAPA program has been rescinded, the DACA program will remain in effect. This means that people who are currently in lawful status under the program will still be able to renew their existing period of DACA if it is expiring and continue to work in lawful status if they were granted work authorization.

On May 24, 2017 John Kelly, the Secretary of Homeland Security, extended the Temporary Protected Status (TPS) granted to all Haitian nationals residing in the U.S. The current grant expires on July 22, 2017, so the extension would allow Haitian nationals to remain in the country until January 22, 2018 if they re-register.

The extension came after several members of Congress sent a letter to the Secretary Kelly urging the administration to extend TPS because of the severe economic and health conditions found in Haiti.

“TPS is a statutory mechanism that grants work authorization and protection against deportation to nationals of designated countries. TPS, however, does not grant permanent residency, citizenship, or any right to an ongoing immigration status.

The protection was first created by Congress when it passed the Immigration Act of 1990. This early version of the statute granted temporary protection to people unable to return to their home country due to political or environmental catastrophe. It has since been amended to allow the Department of Homeland Security (DHS) to designate a country for TPS when (1) it is unsafe for a national to return home due to an ongoing armed conflict; (2) when the state is not able to accept the return of its nationals due to a natural disaster or environmental catastrophe, and has requested TPS status; or (3) extraordinary and temporary conditions in a state prevent its nationals from returning safely.

The protection was first granted to Haitian nationals by the Obama administration in 2010 after the country was devastated by a catastrophic magnitude 7.0 earthquake. TPS protection for Haitian nationals has been extended several times over the years due to the poor health and economic conditions and lack of recovery from the disaster.

The Trump administration denied the 18 month extension afforded to Haitians by the prior administration, which indicates that this administration is committed to conducting a thorough review of the TPS program. The six month extension also indicates that the U.S. government is permitting both Haitian nationals and the Haitian government time to get their affairs in order before the TPS designation is no longer renewed.

Haitians seeking to take advantage of the extension must re-register by July 24, 2017, at which time the beneficiary must request a new Employment Authorization Document.

Under both domestic and international law, individuals may seek asylum in the United States if they are fleeing persecution based on certain reasons. When an individual at the border expresses a fear of return to their home country, immigration officials are supposed to refer them to an interview with an asylum officer so the individual can present their case.

Asylum-seekers, however, have recently been facing many obstacles to getting their day in court. First, immigration officials have reportedly been turning individuals away at the border despite their requests for asylum and their statements of fear. Second, many of those that are allowed across the border are placed into detention and then receive inadequate screening. Officers do not always ask individuals if they fear return to their home country or they ignore expressions of fear. In those cases, individuals are subject to ‘expedited removal’ – meaning swift deportation without the opportunity to seek review or see a judge.

Human Rights First issued a report based on a survey of 125 cases of individuals and families denied access at the border in Texas, Arizona, and California. Many of those interviewed stated that border officials told them that the U.S. was no longer granting asylum like before because of the new administration. In reality, though, President Trump has not actually issued any new regulations or policies that would change the way border officers should deal with asylum-seekers. Those expressing a fear of return should, therefore, still have the same opportunity to present their asylum case. Asylum is still being granted, despite what border officials have reportedly been telling asylum-seekers at the border.

Many of those not turned away at the border are immediately placed in detention, including women and children fleeing violence in Central America. Trying to present a claim for asylum while in detention is extremely difficult and legally complicated. The American Immigration Council issued a report describing the most egregious challenges these individuals face. Specifically, the ‘expedited removal’ process has led to many women and children being deported despite having legitimate asylum claims.

Customs and Border Patrol, the department charged with securing U.S. borders, responded by stating that its policies have not changed and they are still complying with their international obligations regarding asylum.

In January 2017, President Trump issued an executive order stating the government would withhold federal funds from jurisdictions that “willfully violate Federal law in an attempt to shield” illegal immigrants from removal. This executive order responded to the growth of the sanctuary cities movement, referring to cities that use formal and informal policies to limit authorities collecting or sharing information about an individual’s immigration status.  Policies may include officers not inquiring about immigration status during encounters or jails refusing to detain illegal immigrants beyond their scheduled release dates when ICE requests. Sanctuary policies have become the subject of controversy throughout the country as people debate whether they actually ensure or threaten public safety.

Advocates argue that sanctuary policies are essential to protect people. If local law enforcement agencies assist with detention and deportation, they could end up alienating immigrant communities and discouraging victims and witnesses from reporting crimes. Many police chiefs are vocal supporters of sanctuary policies, seeing their job as protecting their citizens rather than enforcing federal immigration laws.

Opponents, however, condemn sanctuary policies as obstructing federal efforts to control illegal immigration and permitting dangerous, undocumented criminals to go free. They argue that cooperation between local and federal officials is necessary to crack down on illegal immigration in the US and to ensure the safety of Americans.

This intense debate has been playing out in jurisdictions around the country.

• The LA Police Department has said that it will continue its policy of not allowing officers to stop people solely on their immigration status.
• The mayors of Chicago and San Francisco have both reaffirmed that their cities will always be sanctuaries for immigrants.
• Other jurisdictions, however, are trying to outlaw sanctuary policies. The Governor of Texas signed a bill on May 7, 2017 that banned sanctuary cities, because these policies are basically “harboring people who have committed dangerous crimes.” The bill prohibits cities from enacting laws that prevent officers from inquiring about the immigration status of those they detain and criminalizes failure to comply with federal immigration guidelines.

For the time being, Colorado seems to be falling more on the pro-sanctuary side. None of the county jails honor ICE detainer requests and lawmakers recently vetoed a bill that would have withheld state funds from sanctuary cities. A number of cities have declared themselves sanctuaries or instituted sanctuary policies. With that said, the debate and political turmoil around the country is unlikely to end soon and will continue to impact immigrant communities and the larger American public.

On Tuesday, President Trump unveiled his latest executive order, entitled “Buy American and Hire American,” through which he directs several executive agencies to review the H-1B visa program. Underlining President Trump’s order is the conclusion that buying American-made goods will “promote economic and national security” and “help stimulate economic growth,” and that hiring American workers will “create higher wages and employment rates for workers in the United States.”

Through the H-1B program, USCIS issues 85,000 visas annually to persons with “highly specialized knowledge.” Though Congress designed the program to allow domestic employers to recruit workers from abroad when they could not find qualified domestic laborers, some have argued that the program incentivizes employers to hire foreign-born workers at low wages.

With the intent to address this perceived “widespread abuse,” Trump’s latest order instructs federal agency heads—including the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security—to review the H-1B program and ‘suggest reforms to help ensure that the H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” While the executive order does not actually provide for any changes in the H-1B program, many have seen the order as a first-step towards reform efforts.