Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap.

The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries.

The proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

Of course the flip side to this will be correspondingly fewer H-1B Cap slots available for those without Advanced Degrees. It remains to be seen if this rule will become final or face legal challenges. 

Read the full rule here:

https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

The Department of Homeland Security (DHS), in conjunction with the Department of Labor (DOL), has published a joint notice of proposed rulemaking (NPRM) that would modernize the recruitment requirements for employers seeking H-2B nonimmigrant workers to make it easier for U.S. workers to find and fill these open jobs. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

The proposed rule would require electronic advertisements to be posted on the internet for at least 14 days, replacing the print newspaper advertisements that regulations currently require.

DHS and DOL believe this is a more effective and efficient way to disseminate information about job openings to U.S. workers. The Departments believe that electronic advertisements, posted on websites that U.S. workers in the area of the job opportunity would use, best ensures that U.S. workers learn of job opportunities.

The joint rule proposes phasing out the current requirements with a limited transition period. During the transition, employers would be able to choose between print and electronic advertisements. This provision should provide flexibility for employers who may have already purchased print advertising or have advertising contracts in place.

For more information, read the NPRM published in the Federal Register on Nov. 9, 2018. USCIS encourages public feedback on the proposed rule before the comment period ends on Dec. 10, 2018.

ICE Worksite Raid: Employer Rights and Responsibilities

When it comes to an immigration worksite raid preparation is critical. Even if you are meticulous in confirming the work authorization of all of your employees, Immigration and Customs Enforcement (ICE) could investigate your workplace in connection with a lead or complaint, or based on other factors. If you do not have a worksite enforcement action plan in place consult with your immigration attorney so that in the event ICE makes an unannounced visit, you and your employees are ready. But in the meantime, if ICE comes to your work place, be aware of the following:

• Call Your Lawyer. When ICE arrives at your worksite, call your lawyer immediately. The receptionist or company representative should tell the officers, “Our company policy is to call our lawyer and I’m doing that now.” Your lawyer may be able to come to the worksite quickly to assist or speak to the ICE officers over the phone.

• Scope of Operation. Immigration officers are free to enter any public areas of your work place, but must have a valid search warrant or your consent to enter non-public areas.

• • A valid warrant must be signed and dated by a judge. It will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, I-9 forms, SSA correspondence, etc.)
  • An agent will serve the search warrant on a receptionist or company representative and alert other agents to enter.
  • Your company can accept the warrant but not consent to the search. If you do not consent to the search, the search will proceed but you can later challenge it if there are grounds to do so.
  • Depending on the type of business, ICE may demand that equipment be shut down and that no one leave the premises without permission.
  • ICE may move employees into a contained area for questioning.
  • While some agents question employees, others will likely execute the search and seizure of items listed in the warrant.

• Employer Rights and Responsibilities. Employers have a number of rights and responsibilities during an ICE worksite raid:

• • If a search warrant is presented, examine it to ensure that it is signed by the court, that it is being served within the permitted time frame, and that the search is within the scope of the warrant – the area to be searched and the items to be seized. Be sure to send a copy of the warrant to your attorney.
  • Write down the name of the supervising ICE agent and the name of the U.S. attorney assigned to the case.
  • Have at least one company representative follow each agent around the facility. The employee may take notes or videotape the officer. Note any items seized and ask if copies can be made before they are taken. If ICE does not agree, you can obtain copies later.
  • If agents presented a valid search warrant and want access to locked facilities, unlock them.
  • Request reasonable accommodations as necessary. If agents insist on seizing something that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized. Reasonable requests are usually granted.
  • Do not block or interfere with ICE activities or the agents. However, you do not have to give the agents access to non-public areas if they did not present a valid search warrant.
  • Object to a search outside the scope of the warrant. Do not engage in a debate or argument with the agent about the scope of the warrant. Simply present your objection to the agent and make note of it.
  • Protect privileged materials.    
    • If agents wish to examine documents designated as attorney-client privileged material (such as letters or memoranda to or from counsel), tell them they are privileged and request that attorney-client documents not be inspected by the agents until you are able to speak to your attorney.
    • If agents insist on seizing such documents, you cannot prevent them from doing so. If such documents are seized, try to record in your notes exactly which documents were taken by the agents.
  • Ask for a copy of the list of items seized during the search. The agents are required to provide this inventory to you.
  • Company representatives should not give any statements to ICE agents or allow themselves to be interrogated before consulting with an attorney.
  • You may inform employees that they may choose whether or not to talk with ICE, but do not direct them to refuse to speak to agents when questioned.
  • Do not hide employees or assist them in leaving the premises. Do not provide false or misleading information, falsely deny the presence of named employees, or shred documents.
  • Don’t forget the health and welfare of your employees. Enforcement actions can sometimes last for hours. If an employee requires medication or medical attention or if employees have children who need to be picked up from school, communicate these concerns to the ICE officers.

• Employees Have the Right to Remain Silent and the Right to an Attorney. Ask if your employees are free to leave. If they are not free to leave, they have a right to an attorney. Though you should not instruct your employees to refuse to speak to ICE, they also have the right to remain silent and do not need to answer any questions.

• • Your employees do not need to answer questions about their immigration status, where they were born, or how they entered the United States. They may exercise their right to remain silent and may ask to speak to an attorney.
  • If ICE tries to determine your employees’ immigration status by asking them to stand in groups according to status, they do not have to move, or they can move to an area that is not designated for a particular group.
  • They may also refuse to show identity documents that disclose their country of nationality or citizenship.
  • If your employees are detained or taken into custody, be sure that their families are contacted and any money owed to the employees is paid.

• Post-Raid Issues. The investigation does not end after ICE leaves the premises. ICE and the U.S. Attorney will thoroughly review the items seized during the raid and the investigation, including undercover surveillance, can continue for many months.

ICE is not the only law enforcement agency that can visit or conduct an enforcement action against your worksite. The Department of Labor may also conduct an investigation, and in some jurisdictions, state and local police can act on behalf of ICE in an operation. For more information about your rights and responsibilities as an employer in the event of an ICE raid or other enforcement action or investigation at your work place, speak to a qualified immigration lawyer.

Visit the American Immigration Lawyers Association and the American Immigration Council websites for more information. The contents of this document do not constitute legal advice.

U.S. Citizenship and Immigration Services (USCIS) is continuing to implement the June 28, 2018, Policy Memorandum (PM), Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.

Starting Nov. 19, 2018, USCIS may issue NTAs as described below based on denials of I-914/I-914A, Applications for T Nonimmigrant Status, and petitions for Forms I-918/I-918A, Petitions for U Nonimmigrant Status; I-360 Petition for Amerasian, Widow(er); I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant, Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions); and I-730 Refugee/Asylee Relative Petition, when the beneficiary is present in the US, as well as Form I-485, Application to Register Permanent Residence or Adjustment of Status, filed with these underlying form types.

If applicants, beneficiaries, or self-petitioners who are denied are no longer in a period of authorized stay and do not depart the United States, USCIS may issue an NTA. USCIS will continue to send denial letters for these applications and petitions to ensure adequate notice regarding period of authorized stay, checking travel compliance, or validating departure from the United States.

USCIS began implementing the PM for denied Forms I-485 and I-539 on Oct. 1, 2018. USCIS will not implement the memorandum with respect to employment-based petitions at this time. Existing guidance for these case types remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns for referral for removal proceedings. USCIS has not changed to the current processes for issuing NTAs on these case types, and the agency will continue to use discretion in issuing NTAs for these cases.

USCIS will hold a stakeholder engagement on Nov. 15, 2018, at 2 p.m. Eastern to provide an overview of the PM and respond to pre-submitted questions. The teleconference will include a question and answer session, as time permits. Additional information is available on the Upcoming National Engagements page of our website. A transcript of the Sep. 27, 2018, public USCIS teleconference on NTA implementation is available on our website.

USCIS will continue to take an incremental approach to implement this memorandum. Additional information and updates on the implementation of this PM are available on the Notice to Appear Policy Memorandum page.