Dear Readers,
If you subscribe to this newsletter, the odds are pretty good that you believe immigration is good. That might mean good for you personally because of your own immigration status or the status of someone close to you. It might mean it’s good for the company you founded, the university that employs you, or another type of institution that depends on immigration. It might mean you’re an advocate who works on behalf of immigrants and know firsthand how much immigrants contribute to the country.
In any case, the odds are also good that you are viewing the election results from November 5th with a sense of dread. I won’t lie and say the next four years of immigration policy don’t worry me greatly. But I am also not looking at the situation as one where pro-immigration forces are totally helpless either.
Why? For one, this isn’t our first rodeo with President Trump. The immigration system in this country survived 2017 to 2021 and despite attempts to shut it down, vigorous pushback from advocates made a difference. Siskind Susser lawyers, for example, were co-counsel in dozens of successful mass federal lawsuits. For example, we, along with the three other IMMpact Litigation firms, beat the Trump Administration when its Department of Labor tried to roll out draconian prevailing wage rules. We won six cases involving travel bans. We forced adjudications when the Administration tried to halt adjudications of cases. Those are just our cases. Others sued over a number of policies that were inconsistent with the Immigration and Nationality Act and were often successful.
Some counter that the Administration will have learned from their failures and will be better this time. But so have immigration advocates who also have a better idea of what strategies will work and which will not. Others argue that the more conservative Supreme Court will give the Administration the stamp of approval it needs. Perhaps. But the Supreme Court sometimes suprises on immigration issues and they only take a handful of immigration cases a year out of the roughly 150 decisions they will issue.
There are also two “X” factors I’m watching. First, much of what President Trump wants to do in the immigration space will action by Congress. The Republicans will likely have just a two or three seat majority in the House. They have only a three (possibly two) seat majority in the Senate. Getting a majority vote for anything in the House is not a given. That slim a majority makes every House member essentially all powerful in stopping a bill and it will make passing virtually every piece of legislation a challenge. In the Senate, Democrats have the votes to filibuster most types of bills. Republicans are not likely to end the filibuster because they could very well need it in two years after the mid-term elections. There is an exception to the filibuster for budget bills and that may enable the new President to get the money he is seeking for some of his enforcement initiatives. But just as President Biden failed in his attempts to get substantive immigration law changes passed by including them in budget bills, President Trump will face the same problem with the Parliamentarian.
Another challenge for the new Administration will be, ironically, the result of a case decided by the Supreme Court justices he picked. Loper-Bright is an administrative law case that did away with something called “Chevron” deference where federal agencies got the benefit of the doubt in interpreting the law and implementing policies. The new case gives judges the final say in interpreting the law and gives them much more power to overrule agency policies that don’t appear to clearly stem from what was intended by lawmakers when they passed legislation. Expect virtually every Trump immigration policy being challenged in the courts to cite to that case.
None of this is to say we aren’t in for a very challenging four years. “Extreme vetting”, new travel bans, failing to staff consulates, etc. are just the things we know we’ll see again. And there will be surprises too. But keeping America open for immigration is one of the great fights of this generation and it will be waged in advocacy efforts in Congress, on social and legacy media, and, yes, in the courtroom.
In this special issue of Siskind’s Immigration Bulletin, we dive deeper into what to expect from the new Administration. And we will continue to update you on the changes we see and the efforts to push back.
As always, we invite those of you seeking immigration counsel to go to our web site and schedule consultations if you would like to discuss an immigration matter. Please go to www.visalaw.com/consultation if you would like to book an appointment directly in one of our lawyers’ calendars.
Sincerely,
Greg Siskind
Special Edition Ask Visa Law
By Lynn Susser
What Should Employers Expect in the Second Trump Term?
Former President Donald Trump’s election to a second term in the White House is sure to reshape immigration law and enforcement. What should employers expect, and how can they prepare?
We can only guess based on our experience during the first Trump administration and what has been said in recent months.
Expansion of “Buy American, Hire American” Policies
A second term is certain to see such policies reinforced, leading to stricter requirements for employers seeking to hire foreign nationals. These policies place pressure on companies to demonstrate that their hiring practices do not undermine job opportunities for U.S. citizens. Practically speaking, we can expect more aggressive investigations and audits by the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) into wage levels, job descriptions, and recruitment efforts.
Stricter Limits on Visa-Sponsored Petitions
A second Trump term is likely to impact the ability of employers to obtain work-sponsored visas for their foreign workers. The H-1B program will likely feel the effects of new laws and regulations designed to limit H-1B eligibility and availability. Employers can expect policy changes to affect other employer-sponsored visa categories, including L-1 intracompany transfers, TN and E-3 professionals, and many others. Those of you were that around during the first administration will remember the high volume of Requests for Evidence (RFE’s) and the occasional denials.
Limitations on Work Authorization for Students and Others
A second Trump term is likely to see efforts to roll back regulatory authorization of employment authorization categories not explicitly granted by the Immigration and Nationality Act. Policy proposals being considered include the elimination of Optional Practical Training for F-1 students, work authorization for certain H-4 spouses, and humanitarian programs such as Unite for Ukraine, Temporary Protected Status, and Deferred Action for Childhood Arrivals.
Increased Scrutiny of Consular Visa Processing and Border Entries
Companies should be prepared for potential disruptions in travel to the United States, including potential travel bans that could restrict the entry of certain foreign nationals. Increased scrutiny at consular visa interviews and during the entry process are also likely to pose challenges to business travel, cross-border hiring, and foreign nationals already employed in the United States who need to travel abroad for business or pleasure.
Increased Immigration Enforcement and Workplace Compliance
Following similar actions in Trump’s first term, employers can expect continued increases in workplace audits and investigations, including greater scrutiny of Form I-9 compliance and increased enforcement against employers who have not met their obligations to verify work authorization of their employees.
Practical Steps Employers Can Take
- Be thoughtful about communicating support for foreign national workers and the leadership that hires them. Be prepared for future effects on attracting, hiring, and retaining foreign national workers.
- Determine the support needed for your sponsored workforce (including those on “non-sponsored” work permits). Identify and review your sponsored population to understand where new policies may cause disruptions, including those affected by potential travel bans.
- Review your workforce data to identify employees who may be affected by future rollbacks of work authorization and decide whether and how your company will support those employees.
- Audit your current compliance programs. Auditing Form I-9 files and Public Access Files now will relieve the company in the event of future government audits and investigations.
- Review your hiring policies. Ensure that your recruitment and onboarding materials are consistent and do not expose the company to allegations of preferential treatment in the hiring process.
For now this is speculation, but we will strive to keep you informed on a regular basis as we are seeing changes unfold.
Your foreign national workforce will be nervous about the uncertainty caused by the anti-immigrant rhetoric and how it might impact them. What they read in on-line forums is often scarier than reality. We are available to schedule ‘town hall’ style meetings to update them on a quarterly basis or as often as you think that will be helpful.
We look forward to working through these upcoming challenges with you and hope you will reach out as often as necessary for assistance and/or clarification.
In the News from ABIL
OFLC to Decommission Legacy Permanent Online System on December 1
The Department of Labor’s Office of Foreign Labor Certification will decommission the legacy Permanent Online System on December 1.
DOS Corrects DV-2026 Entry Period Dates
The entry period for the DV-2026 program begins on October 2, 2024, and ends on November 7, 2024.
OFLC Announces Annual Determination of Labor Supply States
OFLC is replacing Puerto Rico and Virginia as expected labor supply states with Delaware, Maryland, New Jersey, Ohio, and West Virginia for jobs in the Commonwealth of Pennsylvania.
Senators Urge DHS and DOL to Release the Maximum Number of H-2B Visas for FY 2025
A bipartisan group of senators signed a letter sent to the secretaries of the Departments of Homeland Security and Labor urging them to lift the H-2B cap and release the maximum number of additional H-2B visas allowed for fiscal year 2025.
USCIS Approves New Credentialing Organization for Healthcare Workers
U.S. Citizenship and Immigration Services has approved International Education Evaluations, LLC, as a new credentialing organization for healthcare workers for certain immigration purposes.
USCIS Updates Guidance for T Visas
U.S. Citizenship and Immigration Services has revised guidance in its Policy Manual related to the T visa for victims of severe forms of human trafficking to align with a final rule published in April 2024.
DOJ Settles With State Farm for Retaliation Violation
The Department of Justice has reached a settlement agreement with State Farm Mutual Automobile Insurance Company after determining that one of the company’s corporate offices in Richardson, Texas, violated the law when it terminated a worker in retaliation for raising concerns about citizenship status discrimination.
USCIS Seeks Comments on Revisions to Application for Employment Authorization
In addition to specific changes to the form, U.S. Citizenship and Immigration Services said it is exploring additional technology and internal process improvements.
DHS Designates Lebanon for Temporary Protected Status, Announces Other Relief
The Department of Homeland Security announced several measures “to provide temporary immigration reprieve to eligible Lebanese nationals currently in the United States” and allow them to request work authorization, including Temporary Protected Status, Deferred Enforced Departure, and Special Student Relief.
DOL Debars Labor Contractor From H-2A Program for Three Years
The Department of Labor (DOL) has debarred Harvest Plus LLC, a farm labor contractor based in Kennewick, Washington, from participating in the H-2A temporary agricultural worker program for three years due to violations.
SAVE Provides Info on New ‘Military Parole in Place’ Admission Class
The Department of Homeland Security released information to SAVE user agencies about documentation and the SAVE verification process for individuals who are paroled in the United States with the new Military Parole in Place class of admission for certain U.S. military service members and their families.
USCIS Will Dispose of SAVE Records More Than 10 Years Old
SAVE agency users with the Superuser role have until January 16, 2025, to download case information from the Historic Records Report if they want to retain information about SAVE cases with records dated on or before December 31, 2013.
DHS Announces Restrictions on Flights Carrying Travelers From Rwanda
The Secretary of Homeland Security has directed all flights to the United States carrying persons who have recently traveled from, or were otherwise present within, Rwanda to arrive at one of three designated international airports: Chicago O’Hare, John F. Kennedy, or Washington-Dulles. The directive is related to an outbreak of Marburg Virus Disease.
OFLC Releases FAQs on Employer Needs and Communications During Recent Major Disasters
The Department of Labor’s Office of Foreign Labor Certification released frequently asked questions on issues related to employer needs and communications in Hurricane Helene-affected areas and Vermont.
USCIS Updates Guidance on Expedite Requests
The update clarifies how the agency considers expedite requests related to government interests and requests related to emergencies or urgent humanitarian situations, including travel-related requests. The update also clarifies how to make an expedite request and explains how USCIS processes them.
New Application Released for Travel, Parole, Arrival/Departure Documents; No Grace Period
On October 11, 2024, U.S. Citizenship and Immigration Services (USCIS) announced publication of a new Form I-131 (06/17/24 edition) named “Application for Travel Documents, Parole Documents, and Arrival/Departure Records.” USCIS is not offering any grace period to transition to the new form.
USCIS Launches PDF Filing Option for Certain Work Permit Applicants
On October 8, 2024, U.S. Citizenship and Immigration Services announced a PDF filing option for certain applicants seeking a work permit.
The Department of State’s Visa Bulletin for November 2024 includes information on the extension of the SR religious workers category and effects of the National Defense Authorization Act on certain employees of the U.S. government abroad who are applying for Special Immigrant Visas (SIVs) or adjustment of status. This does not affect certain Iraqis and Afghans applying for SQ and SI SIVs.
OFLC to Decommission Legacy Permanent Online System on December 1
The Department of Labor’s Office of Foreign Labor Certification will decommission the legacy Permanent Online System on December 1.
DOS Corrects DV-2026 Entry Period Dates
The entry period for the DV-2026 program begins on October 2, 2024, and ends on November 7, 2024.
OFLC Announces Annual Determination of Labor Supply States
OFLC is replacing Puerto Rico and Virginia as expected labor supply states with Delaware, Maryland, New Jersey, Ohio, and West Virginia for jobs in the Commonwealth of Pennsylvania.
Senators Urge DHS and DOL to Release the Maximum Number of H-2B Visas for FY 2025
A bipartisan group of senators signed a letter sent to the secretaries of the Departments of Homeland Security and Labor urging them to lift the H-2B cap and release the maximum number of additional H-2B visas allowed for fiscal year 2025.
What Should Employers and Investors Expect in the Second Trump Term?
Former President Donald Trump’s election to a second term in the White House is sure to reshape immigration law and enforcement. What should employers expect, and how can they prepare?
Biden Administration’s ‘Parole in Place’ Program Struck Down by Federal Judge
The judge determined that the Biden administration lacked statutory authority for the program.
USCIS Updates SAVE ICA v38 Draft
U.S. Citizenship and Immigration Services (USCIS) has updated the draft SAVE Interface Control Agreement (ICA) v38. USCIS said that registered web services agencies can use this draft for planning purposes and to familiarize developers but that it may still be modified.
DOL Proposes to Amend H-2B Regulations for Employer-Provided Wage Surveys
The Department of Labor proposes to amend the regulations consistent with recent federal litigation by clarifying existing requirements for employer-provided surveys for the H-2B program. DOL also proposes to add new requirements and eliminate Form ETA-9165.
DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2025
The Department of Homeland Security, in consultation with the Department of Labor, expects to make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2025, on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year.
OFLC Releases Data From Employers and H-2B Foreign Labor Recruiter List
The Department of Labor’s Office of Foreign Labor Certification has released data and selected program statistics for the fourth quarter of fiscal year 2024, along with the foreign labor recruiters list for the H-2B program.
USCIS Updates Guidance on Advance Parole in Extensive FAQ for DACA Recipients
U.S. Citizenship and Immigration Services has updated its extensive list of frequently asked questions and answers on Deferred Action for Childhood Arrivals and the use of advance parole.
DOJ Reaches Agreement With Staffing Company to Resolve Immigration-Related Discrimination Claim
The agreement resolves the Department of Justice’s determination that Express Employment Professionals “discriminated against a worker because of her immigration status by refusing to continue to honor her valid document that showed her permission to work in the United States.”
DOS Releases Visa Bulletin for December
The bulletin includes information on final action dates for employment-based visa preference cases, dates for filing of employment-based visa applications, diversity visa (DV) updates for December, and DV category rank cut-offs for January 2025, among other things.
DOS Brings Exchange Program Alumni Entrepreneurs to United States for Creative Economy Residency
This year’s Institute included artists and their community partners from Iraq, Mexico, Nigeria, Türkiye, and Ukraine for an intensive two-week exchange program in the United States.
Immigration Medical Exam Documentation Valid Indefinitely for Certain Afghan Nationals U.S. Citizenship and Immigration Services has updated guidance to reflect that immigration medical examination documentation for certain Afghan nationals who arrived in the United States during Operation Allies Welcome is valid indefinitely.
Planned Trump Mass Deportations Could Heavily Impact U.S. Farming
The Trump administration’s plans to deport millions of undocumented migrants currently in the United States could severely impact U.S. agriculture and thus reduce the food supply and raise grocery prices.
ACLU SoCal said that the information sought “will shed critical light on [U.S. Immigration and Customs Enforcement’s] removal processes and help to inform the public of the risks that would result if [ICE Air Operations’] capacity is further built out.”
DHS Announces Countries Eligible for H-2A and H-2B Nonimmigrant Worker Programs
The announcement adds Belize to the list of countries eligible to participate.
Dozens of Mexican workers brought into the United States from Mexico on L-1 visas were paid in Mexican pesos below the minimum wage. The Department of Labor found that the company owed $719,135 in unpaid minimum and overtime wages plus an equal amount in liquidated damages.
President-Elect Trump Names Picks for Secretary of Labor, Attorney General
Continuing his rapid-fire announcements of cabinet picks, President-elect Donald Trump named his choices for several more positions.
State Department Visa Bulletin
To view the November 2024 Visa Bulletin from the State Department: click here.