Breaking News 08.02.2017

Bipartisan Legislators Revive DREAM Act Amidst DACA's Uncertain Future

On July 20, Senators from both political parties introduced the 2017 DREAM Act, a bill that provides a path to permanent residence and citizenship for immigrant youth who arrived in the U.S. under the age of 16, have no significant criminal history, and meet certain other conditions (often referred to as "Dreamers"). The Development, Relief, and Education for Alien Minors (DREAM) Act was initially introduced as a bipartisan bill in 2001, and has been reintroduced unsuccessfully several times since.

In addition to the Senate's DREAM Act, three bills have been introduced in the House of Representatives that provide some form of protection for Dreamers: The American Hope Act sponsored by 117 Democrats, a bill sponsored by both Democratic and Republican representatives similar to the Senate bill, and the Recognizing America's Children (RAC) Act sponsored by centrist Republicans.

Congress appears to recognize the urgency of passing some form of legislation given the uncertain fate of the Deferred Action for Childhood Arrivals (DACA) program, which began during the Obama Administration as a way for Dreamers to register with the U.S. government in exchange for obtaining two-year work authorization documents and temporary protection from deportation. The Trump Administration has so far not indicated that it will end the DACA program. However, attorneys general from 10 states (led by the State of Texas) have announced they will formally challenge the validity of the DACA program in the courts if Trump does not revoke DACA by September 5, 2017, thus forcing the Administration to formally defend DACA in court. Until now, inaction has allowed the program to continue. Almost 800,000 young people are currently protected under DACA, and more are enrolling each month as they reach the minimum age of 15.

Trump Administration Supports Plan to Halve Legal Immigration through the RAISE Act

This morning, Senator Tom Cotton (R-Arkansas) and Bill Perdue (R-Georgia) introduced the Reforming American Immigration for Strong Employment (RAISE) Act , and President Trump immediately trumpeted his support. The bill, rooted in the President's view that even lawful immigration deprives "working Americans of a fair shot at wealth creation," would reduce current legal immigration to the U.S. by half within 10 years. The bill would entirely eliminate the ability for U.S. citizens to sponsor their parents, siblings and adult children, as well as the ability of lawful permanent residents (LPRs) to sponsor their unmarried adult children. The RAISE Act would also eliminate the diversity visa lottery, which currently allocates 50,000 immigrant visas per year to persons from low immigration countries and territories. To offset the negative effects on U.S. citizens' parents, the bill would create a temporary visa system for those who need care, but not permitting such parents to work and requiring financial and health insurance guarantees from the children. Finally, the bill would limit the number of refugees approved for permanent residence to 50,000 per year. Cotton and Perdue claim that the bill would cut legal immigration rates, currently at about 1 million per year, in half in ten years.

Thankfully, it is our opinion at Ware|Immigration that there are not 50 votes in the Senate in favor of this proposal, should it even make it there, and thus, its likelihood of passage is nil. Notably, Republican Senators Flake, McCain, Murkowski, Graham, and Collins would likely vote "no".

USCIS Launches Program to Renew Your "Green Card" Using Your Smartphone

On July 25, USCIS announced that its redesigned I-90 form (Application to Replace Permanent Resident Card), is now compatible for mobile devices. This means Lawful Permanent Residents who file to renew their LPR card (or "green card") online can now use their phone to do so. USCIS indicates that the new I-90 form should be easier to navigate and allow users to take and upload photos of necessary evidence, and also pay the filing fee online. Individual users must create a USCIS account online and file the application here.

Please note that the I-90 form cannot be used to remove the conditions on a two-year "green card." If you have questions about your eligibility to file an I-90 online, please contact a qualified immigration attorney.

Dan Kowalski's H-2B Visas Expert Analysis Article Published by Law360

The online newsletter Law 360 published an incisive article penned by Managing Partner Dan Kowalski last week. Below is the text in full.

H-2B Visas And The Making Of An 'Ultra Vires' Regulation

By Daniel Kowalski

July 25, 2017, 1:51 PM EDT

H-2B visas for temporary nonagricultural workers are normally an obscure backwater topic in immigration law. Few lawyers know how to work them. They rarely make the news, unless the news is scandalous[1] or is about President Donald Trump[2].

Unlike H-2A visas for temporary agricultural workers, which have no annual numerical cap, H-2B visas are capped at 66,000 per year. Due to this fixed supply, increasing demand from landscapers, hotels, restaurants and seafood processors has caused the cap to be hit earlier and earlier each year, leaving employers without badly needed workers[3].

In some prior years, a statutory workaround existed to help employers avoid the cap problem: the "returning worker exemption," that exempted certain returning H-2B workers from the cap count. But Congress let that exemption expire on Sept. 30, 2016[4].

Rather than simply raise the cap, or renew the exemption, Congress tried to "split the baby" by authorizing the U.S. Department of Homeland Security , in consultation with the U.S. Department of Labor , to "increase the total number of aliens who may receive an H-2B visa in FY 2017 by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation."[5]

Congress' passing the buck to DHS and the DOL triggered a slew of competing letters to the agencies, including one from at least 87 members of Congress urging DHS Secretary John Kelly and DOL Secretary Alexander Acosta to "take immediate action to ensure that small and seasonal businesses across the nation are able to get the workers they need to operate during the busy summer months,"[6] as well as one from four senators urging Kelly and Acosta to "carefully evaluate how American workers could be affected before issuing any additional H-2B foreign worker visas, above the annual cap of 66,000."[7] In a May 25, 2017 Senate hearing, Sen. Lisa Murkowski, R-Alaska, described to Kelly the "significant economic impact" of the lack of H-2B workers on the $5.8 billion fisheries industries. Kelly replied that he wished he did not have the responsibility for making this decision.[8]

Finally, on July 19, 2017, DHS and the DOL jointly published a temporary rule in the Federal Register, effective immediately, authorizing the issuance of an additional 15,000 H-2B visas through the end of fiscal year 2017, i.e., Sept. 30. For many H-2B-dependent employers, this was too little, too late. Most landscaping companies, for example, begin sending their workers home after Thanksgiving. Given the two- to four-week or more processing time for the new visas, precious little work time remains in the season.

But the real problem with the temporary rule is the requirement that employers attest, under penalty of perjury, that "if they do not receive all of the workers under the cap increase, they are likely to suffer irreparable harm, i.e., suffer a permanent and severe financial loss." (emphasis added). To be blunt, there simply is no statutory or regulatory authority for this "irreparable harm" attestation requirement. It is 100 percent "ultra vires," a Latin phrase meaning "beyond the powers," and subject to challenge in court ... except for the "dead man switch" at the end of the temporary rule: "[I]n the event the attestation requirement is enjoined or held invalid, the remainder of the regulation, ... is also intended to cease operation ..." In effect, DHS and the DOL are saying to employers, "We know this attestation requirement is illegal, but if you sue us, we'll blow the whole thing up."

It is reasonable to predict that many H-2B employers will not try to take advantage of the temporary rule given the added cost, the late date and, perhaps most importantly, the difficulty (impossibility?) of proving irreparable harm. And even if a lucky few employers are approved for the extra visas, they are almost sure to be audited later by DHS and/or the DOL: "This rule was written in such a way to set people up to be audited," said Loan Huynh, an attorney in the Minneapolis office of Fredrikson & Byron PA .[9]

In the short run, the only solution is for Congress to go back to the statutory drawing board and fully reenact the returning worker exemption as it was from 2005 to 2007, and 2016. In the long run, Congress should double, triple or simply eliminate the cap for H-2B visa numbers.


Daniel M. Kowalski is the managing partner of Ware | Immigration in Centennial, Colorado, and the editor-in-chief of Bender's Immigration Bulletin (published by LexisNexis).

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center, Feb. 18, 2013, available at https://www.splcenter.org/20130218/close-slavery-guestworker-programs-united-states.

[2] During Trump's 'Made in America' week, Mar-a-Lago Club seeks more foreign workers, CNN, July 21, 2017, available at http://www.cnn.com/2017/07/20/politics/mar-a-lago-foreign-visas/index.html.

[3] For businesses that boom in the summer, Trump's H-2B visa expansion is too little too late, PRI, July 19, 2017, available at https://www.pri.org/stories/2017-07-19/businesses-boom-summer-trump-s-h-2b-visa-expansion-too-little-too-late.

[4] H-2B Returning Worker Program Expired: Employers Should Stop Identifying "Returning Workers" in Petitions for FY 2017, USCIS Alert, available at https://www.uscis.gov/news/alerts/h-2b-returning-worker-program-expired-employers-should-stop-identifying-returning-workers-petitions-fy-2017.

[5] Federal Register, Vol. 82, No. 137, Wednesday, July 19, 2017, page 32988, implementing section 543 of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus).

[6] King, Tillis, Harris, Keating Lead Bipartisan, Bicameral Letter Urging Homeland Security, Labor Departments to Help America's Small Businesses In Need of Seasonal Workers, May 15, 2017, available at https://www.king.senate.gov/newsroom/press-releases/king-tillis-harris-keating-lead-bipartisan-bicameral-letter-urging-homeland-security-labor-departments-to-help-americas-small-businesses-in-need-of-seasonal-workers.

[7] Grassley, Senators Demand Protections for American Workers before DHS Issues More Temporary Work Visas, May 23, 2017, available at https://www.grassley.senate.gov/news/news-releases/grassley-senators-demand-protections-american-workers-dhs-issues-more-temporary.

[8] Homeland Security Fiscal Year 2018 Budget, C-SPAN, available at https://www.c-span.org/video/?428834-1/homeland-security-secretary-testifies-fy-2018-budget.

[9] DHS Grants Additional 15,000 H-2B Visas, SHRM, July 19, 2017, available at https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/DHS-Grants-Additional-H2B-Visas.aspx.

David Ware Joins Advisory Committee of Journal of College and University Law

Ware|Immigration is proud to announce that founding partner David Ware has accepted an invitation to join the Advisory Committee for the Journal of College and University Law for the 2017-18 academic year. The Advisory Committee will work with the faculty editors of the Journal at Rutgers Law School to suggest possible topics and authors of Journal articles, provide input about additional content on the Journal's new website, review articles and serve as peer reviewer, and work with the Editorial Board of scholars appointed by the Rutgers editors in consultation with the National Association of College and University Attorneys. Congratulations, David!

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