Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama and Trump Administrations

The following is a summary of key regulatory actions, completed, underway, or anticipated, in which the Chamber has been, or plans on being, actively engaged.

Table of Contents

Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama and Trump Administrations................................................................................................................1Labor and Employment Related Regulatory Activity...............................................................4

Completed Rulemakings..........................................................................................................4

Updating and Modernizing Overtime Regulations..................................................................4

FAR Regulation: Ending Trafficking in Persons.....................................................................5

Employer and Consultant Reporting Under the LMRDA’s Persuader Regulations................6

OSHA Injury and Illness Reporting Regulation.......................................................................6

Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness (Volks)............................................................7

Workplace Wellness Programs and Employment Discrimination...........................................8

EEOC’s Changes to the EEO-1 Form......................................................................................9

Tip Regulations Under the Fair Labor Standards Act (Wage and Hour Division)................10

Request for Information on NLRB’s “Quickie Election” Regulation....................................10

Anticipated Rulemakings.......................................................................................................10

Labor Organization Annual Financial Reports (Office of Labor Management and Standards)................................................................................................................................................10

Trust Annual Reports (Office of Labor Management and Standards)...................................10

Significant Non-Regulatory Activities.......................................................................................10Opinion Letters (WHD)..........................................................................................................10

Payroll Audit Independent Determination (PAID - WHD)....................................................11

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Field Assistance Bulletin No. 2018-3 (WHD).......................................................................11

Compliance Evaluation Experience Survey (OFCCP)...........................................................11

Immigration Regulatory Activity...............................................................................................13Executive Actions...................................................................................................................13

Border Security and Immigration Enforcement Priorities.....................................................13

Buy American, Hire American...............................................................................................17

Ending “Catch and Release” at the Border of the United States and Directing Other Enhancements to Immigration Enforcement..........................................................................18

Completed Rulemakings........................................................................................................18

International Entrepreneur Rule (USCIS)..............................................................................18

Supplemental Questions for Visa Applicants (USCIS)..........................................................19

EB-5 Immigrant Investor Program Modernization (USCIS).................................................20

Social Media Questions for Visa Applicants (USCIS)..........................................................20

ETA 9035 Changes................................................................................................................21

Labor Certification Process for the Temporary Employment of Aliens in Non-Agricultural Employment in the United States (ETA)...............................................................................21

Anticipated Rulemakings.......................................................................................................21

H-2B Visa Cap Relief.............................................................................................................21

Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders Automation of CBP Form I-94W (CBP)..................................................................21

Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations (USCIS)............................................................................22

Adjustments to the Fee Schedule (USCIS)............................................................................22

Rescission of H-4 Spousal Work Authorization....................................................................22

Strengthening the H-1B Program (USCIS)............................................................................23

Practical Training Reform (ICE)............................................................................................23

EB-5 Immigrant Investor Regional Center (USCIS).............................................................23

Significant Non-Regulatory Activities.......................................................................................23Suspension of Premium Processing (USCIS)........................................................................23

PERM Actual Minimum Requirements (DOL-ETA)............................................................24

Mandatory Interviews for Employment Based Legal Immigration (USCIS)........................24

Memorandum on Rescission of DACA..................................................................................24

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Memorandum of Understanding Between the Department of State Bureau of Consular Affairs and U.S. Department of Justice Immigrant and Employee Rights Section Civil Rights Division on Information Sharing................................................................................25

Extending Temporary Protected Status Designations for El Salvador, Honduras, and Haiti (DHS).....................................................................................................................................25

Policy Memorandum Rescinding Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (USCIS)................................................................................................................................................25

Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (USCIS)..................................................................................................................................26

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Labor and Employment Related Regulatory Activity

Completed Rulemakings

Updating and Modernizing Overtime Regulations

On May 23, 2016, the Department of Labor published the final regulations. The final regulations set the salary threshold at $47,476; increase the highly compensated salary level to $134,000; “automatically update the salary level every three years based on the 40th percentile of earnings for full-time salaried workers in the lowest-wage Census Region, currently the South”; and permit employers to use nondiscretionary bonuses and incentive payment to satisfy up to 10 percent of the salary level for employees under the standard exemption. In addition, the final regulations do not make any changes to the duties test.

On September 20, 2016, the U.S. Chamber in conjunction with other business trade associations and local Chambers of Commerce filed a lawsuit challenging the overtime regulations in the Eastern District of Texas (Sherman Division), arguing that the salary threshold is too high, and DOL violated the FLSA since the agency lacks the statutory authority to index the threshold to inflation. At the same time, a coalition of 21 states filed a similar (but not identical) challenge in the same court. The difference between the two cases is that the states sought a preliminary injunction while ours does not. On November 22, 2016, the judge in the Eastern District of Texas case issued a nationwide preliminary injunction blocking the new salary threshold from taking effect. On August 31, 2017, the judge in the Eastern District of Texas case ruled in favor of the Chamber in the motion for summary judgment, ruling that the overtime regulation violated the FLSA by setting a salary threshold that supplanted the duties test, which is considered the better criteria for determining exemption.

On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal this decision to the U.S. Court of Appeals for the Fifth Circuit. According to the Department of Justice, “Once this appeal is docketed, the Department of Justice will file a motion with the Fifth Circuit to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be.” That motion has been finalized and was unopposed leading to the case being on hold with DOL having to submit updates on the rulemaking every six months.

On July 26, 2017, the Department of Labor issued a request for information (RFI) to make changes to the overtime regulations.

On September 25, 2017, the Chamber submitted comments, which may be accessed here:https://www.uschamber.com/sites/default/files/u_s_chamber_-_comments_-_2017_rfi_on_overtime_final-comments_only.pdf

The Fall 2017 regulatory agenda published December 14, 2017, indicates that the proposed rule is anticipated in October, 2018.

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FAR Regulation: Ending Trafficking in Persons

On September 26, 2013, the Department of Defense, General Services Administration and the National Aeronautics and Space Administration published a proposed rule in the Federal Register to amend the Federal Acquisition Regulation (“FAR”) to among other things, prohibit federal contractors, contractor employees, subcontractors and subcontractor employees from engaging in any activities related to human trafficking, such as forced labor and prostitution. For contracts that are not solely for commercially off-the-shelf items and where a portion of the contract will be performed overseas, the contractor or successful offeror will be required to develop a compliance plan and issue a certification of compliance at the time the contract is awarded and annually thereafter. The requirements of a compliance plan and certification apply to all subcontracts where the value of the services provided and/or supplies acquired outside the United States exceeds $500,000.

The proposed rule mandates that the contractor compliance plans include “procedures to prevent agents and subcontractors at any tier from engaging in trafficking in persons, and to monitor, detect, and terminate any agents, subcontractors, or subcontractor employees that have engaged in such activities.”

On December 20, 2013, the Chamber filed joint comments with the Aerospace Industries Association, the American Council of Engineering Companies, the National Defense Industrial Association, the Professional Services Council, and TechAmerica.

On January 29, 2015, the FAR Council issued the final rule, which became effective March 2, 2015. The final rule sought comment on a recommendation by the Senior Policy Operating Group for the FAR Council to consider a new definition of the term, “recruitment fees” to supplement the regulation. On March 18, 2015, the Chamber submitted comments, which may be accessed here: https://www.uschamber.com/comment/comments-gsa-draft-definition-recruitment-fees-supplement-far-case-2013-001

On May 11, 2016, the FAR Council promulgated a proposed rule, requesting comments regarding the definition of the term, “recruitment fees.” On July 11, 2016, the Chamber submitted comments, which are available here: https://www.uschamber.com/comment/comments-gsa-combating-trafficking-persons-definition-recruitment-fees

The Chamber is active in promoting best practices to avoid human trafficking and is working to root out both the cause and effects of human trafficking.  However, the Chamber is concerned about the creation of potential contractor and subcontractor liability without regard to the realities of global supply chains and various other provisions that complicate employer recruitment processes without a tangible relationship to reducing human trafficking. 

The Fall 2017 regulatory agenda published December 14, 2017, indicates that the final regulation was anticipated, February, 2018.

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Employer and Consultant Reporting Under the LMRDA’s Persuader Regulations

On June 21, 2011, the Labor Department published a proposed rule, which would greatly narrow the interpretation of the “advice” exemption. The proposed rule would significantly increase regulation of law firms, trade associations, and others who communicate with employers regarding union issues. Narrowing of the employer exception could also prove extremely problematic for employers and chill exercise of free speech rights.

On March 24, 2016, the Department of Labor promulgated final regulations consistent with the proposed rule.

On June 27, 2016, the U.S. District Court for the Northern District of Texas instituted a preliminary nationwide injunction, stopping the proposal from taking effect.

On November 16, 2016, the judge made the injunction permanent thereby invalidating the rule.

On June 12, 2017, the Department of Labor promulgated a proposed rule to rescind the regulations.

On August 11, 2017, the Chamber submitted comments, which may be accessed here: https://www.uschamber.com/comment/comments-the-department-labor-rescission-the-rule-interpreting-advice-exemption

As of March 26, 2018, the final rule rescinding the “persuader” regulation is pending at OIRA.

OSHA Injury and Illness Reporting Regulation

On November 8, 2013, OSHA published a proposed rule to amend its current recordkeeping regulations to add requirements for the electronic submission of illness and injury records employers are required to keep under Part 1904. On August 14, 2014, OSHA published a supplemental notice of proposed rulemaking to explore adding provisions that will make it a violation for an employer to discourage employee reporting. The supplemental would upend the statutory whistleblower protection provisions of Section 11(c) by giving OSHA the ability to issue citations against employers without an employee complaint, i.e. no whistleblower.

On May 12, 2016, OSHA published the final regulations. Employers with 250 or more employees (includes part-time, seasonal, and/or temporary workers) in each establishment must submit electronically their 300, 301, and 300A, forms to OSHA on an annual basis (instead of quarterly as originally proposed). Employers with more than 20 but less than 250 employees in certain identified industries must submit only their 300A form annually.

OSHA announced that they would post the data from employer submissions on a publicly accessible website – and vowed not to include any information that could be used to identify individual employees. Employers are also required to have a “reasonable” policy in place for employees to report injuries or hazards. A “reasonable” policy is one where a “reasonable employee would not be deterred.” OSHA then elaborated in the preamble that some of the

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employer actions that might trigger citations under the anti-retaliation provision would include drug testing seen as punitive or deterring an employee from reporting an injury, or safety incentive programs that rely on a rate of injury, or absence of injuries, for rewarding employees. 

OSHA delayed the enforcement date for the anti-retaliation provisions from August 1, 2016, to December 1, 2016, due to ongoing litigation. The initial filing deadline for employers with 250 or more employees to submit their form 300As was December 15, 2017.

On July 8, 2016, the National Association of Manufacturers and other business groups filed a lawsuit against OSHA targeting the impact on drug testing and safety incentive programs under the anti-retaliation provision. On January 4, 2017, the Chamber, in conjunction with other business groups such as the National Association of Home Builders, filed a lawsuit in the U. S. District Court for the Western District of Oklahoma seeking a permanent injunction based on a Motion for Summary Judgment. Both cases are currently stayed to allow the new administration to review and determine how to respond. OSHA must submit updates on the rulemaking every 90 days to the federal court in Oklahoma.

On May 5, 2017, the litigants submitted a petition to Secretary of Labor Alex Acosta requesting a stay of the rule and reopening of the rulemaking to further consider the impact of the rule and whether OSHA had proper statutory authority, and followed proper rulemaking procedures.

On February 21, 2018, OSHA sent out a memo to regional administrators setting forth guidelines regarding how to treat employers that violate their obligations with respect to the electronic reporting rule. According to the memo, as part of any inspection through June 15, 2018, compliance officers are expected to check a database of locations that filed reports for 2016. If a worksite was required to file and didn't, OSHA will then issue a citation for an other-than-serious violation with “the appropriate penalty.”

Employers that didn't file can avoid the fine by providing the inspector a paper copy of the 2016 summary or show they have submitted the 2017 summary.

OSHA will not cite worksites that didn't submit forms because of technical problems if the employer previously contacted OSHA about the problem.

The regulatory agenda from December 14, 2017, indicates OSHA is planning to revise the regulation to remove the requirement that 300/301 logs be submitted. OSHA is also indicating that it will not post 300A annual summaries on the internet.

On April 30, 2018, OSHA clarified that employers in state-plans states where the state has not yet issued a companion regulation are still required to meet the federal requirements.

Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness (Volks)

On December 19, 2016, OSHA issued a final rule “clarifying” an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.

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OSHA was responding to a court decision, Volks II, which held that a citation issued for failing to record an injury or illness after the six month period from the occurrence of the recordable incident is barred by the OSH Act’s statute of limitations. In the rulemaking, OSHA changed its recordkeeping regulations to “clarify” that the duty to make and maintain an accurate record of a work-related illness or injury extends the statute of limitations during which a citation can be issued from the congressionally established six months to the five year period for maintaining records.

On April 3, 2017, President Trump signed H.J. Res. 83, a Congressional Review Act resolution invalidating the regulation. On May 3, 2017, OSHA published a final rule, removing the regulations from the Code of Federal Regulations.

Workplace Wellness Programs and Employment Discrimination

On April 20, 2015, the EEOC released proposed regulations that describe how Title I of the American with Disabilities Act applies to workplace wellness programs that are part of group health plans and that include questions about employees’ health (such as questions on health risk assessments) or medical examinations (such as screening for high cholesterol, high blood pressure, or blood glucose levels) for employee-only coverage.

On October 30, 2015, the EEOC issued proposed regulations that amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 as they relate to workplace wellness programs and address the extent to which an employer may offer an employee inducements for the employee’s spouse who is also a participant in the employer’s health plan to provide information about the spouse’s current or past health status as part of a health risk assessment administered in connection with the employer’s offer of health services as part of an workplace wellness program.

On May 17, 2016, the EEOC promulgated the final ADA and GINA regulations, consistent with the proposals.

On October 24, 2016, AARP sued the EEOC, arguing for an injunction to stop the rules from taking effect. On November 22, 2016, the Chamber submitted an amicus curie brief, defending the EEOC’s position that wellness programs that offer incentives are not coercive, but rather voluntary in nature. In December 2016, the District Court denied AARP’s motion for a preliminary injunction. On August 22, 2017, the District Court remanded the regulations back to the EEOC to begin a new rulemaking process.

On January 18, 2018, the District Court reconsidered its judgment and vacated the portion of its order that required the EEOC to issue proposed regulations on the Court’s timeline. On March 30, 2018, the EEOC filed a status report with the court, stating that a “number of policy choices” are available.

The Fall 2017 regulatory agenda published December 14, 2017, indicates that the revised regulations are expected, August, 2018.

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EEOC’s Changes to the EEO-1 Form

On February 1, 2016, the EEOC announced that it was seeking a three-year Paperwork Reduction Act (PRA) approval of a revised Employer Information Report (EEO-1) data collection. The revisions include two components: Component 1, which collects the same data that is gathered by the currently approved EEO-1 (e.g., ethnicity, race, and sex, by job category) and Component 2, which includes data on employees’ W-2 earnings and hours worked. Beginning in 2018, filers with 100 or more employees (both private industry and federal contractors) would be required to submit data in response to both Components 1 and 2 (while contractors with 50 to 99 employees would only submit data for Component 1).

On March 16, 2016, the EEOC held a public hearing to discuss proposed revisions to the EEO-1 data collection report, in which Camille Olson, chair of the Chamber’s equal employment opportunity policy subcommittee testified, objecting to the proposal.

On April 1, 2016, the Chamber submitted comments, criticizing the proposal as unnecessary, overly burdensome, lacking utility, and lacking confidentiality/privacy protections.

The comments may be accessed here: https://www.uschamber.com/comment/comments-eeoc-proposed-revisions-the-employer-information-report

On July 14, 2016, the EEOC submitted a revised proposal to the Office of Information and Regulatory Affairs (OIRA), as required by the Paperwork Reduction Act. The EEOC revised its original proposal to make the new reporting deadline to be March 31st of each year to more closely align with end-of-year W-2 information.

On August 15, 2016, the Chamber submitted comments to OIRA, which may be accessed here: https://www.uschamber.com/comment/comments-the-omb-revision-the-employer-information-report-eeo-1-form

On September 29, 2016, the EEOC released the final form with reporting instructions, which were identical to the proposal submitted to OMB on August 15, 2016. Employers would have been required to report the new information beginning in March 2018.

On February 27, 2017, the Chamber sent a letter to the Office of Management and Budget, requesting that OMB stay the effectiveness of, or otherwise rescind, EEOC’s changes to the EEO-1 Form.

On August 29, 2017, the Administrator, Office of Information and Regulatory Affairs, issued a memo to the Acting Chair of the Equal Employment Opportunity Commission, instructing the EEOC to “initiate a review and immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised as of September 29, 2016.” The memo clarifies that the EEOC “may continue to use the previously approved EEO-1 form to collect data on race/ethnicity and gender during the review and stay.”

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Tip Regulations Under the Fair Labor Standards Act (Wage and Hour Division)

On December 5, 2017, the U.S. Department of Labor Wage and Hour Division issued a notice of proposed rulemaking to rescind the current restrictions on tip pooling by employers that pay tipped employees the full minimum wage directly. Comments were due by February 3, 2018.

Included in the “Consolidated Appropriations Act, 2018,” is a fix that would address concerns about the Department of Labor’s “tip-pooling” regulation. The Act makes it clear that employers are not allowed to access the tips collected for employees “for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips regardless of whether or not the employer takes a tip credit.”  The provision includes liquidated damages and civil money penalties for violations of this provision, and the right for employees to bring actions against the employer. The legislation effectively supplants the Department’s rulemaking, meaning that the Wage and Hour Division will not move forward in issuing these regulations and issue new regulations that conform to Congress’ specifications.

Request for Information on NLRB’s “Quickie Election” Regulation

On December 13, 2017, the NLRB issued a request for information asking for public input whether the Board should revise or repeal the “quickie election” rule.

On April 18, 2018, the Chamber submitted comments supporting rescission of the rule, which may be accessed here: https://www.uschamber.com/comment/us-chamber-comments-the-national-labor-relations-boards-ambush-elections-rule

Anticipated Rulemakings

Labor Organization Annual Financial Reports (Office of Labor Management and Standards)

The Office of Labor-Management and Standards (OLMS) proposes to return to its 2003 interpretation that intermediate bodies that are subordinate to a national or international labor organization that includes a labor organization are covered by the Labor Management Reporting and Disclosure Act. A proposed rule was anticipated March, 2018.

Trust Annual Reports (Office of Labor Management and Standards)

OLMS plans to re-establish a T-1 form to capture financial information pertinent to trusts in which a labor organization is interested (Section 3(l) trusts). A proposed rule is anticipated May, 2018.

Significant Non-Regulatory Activities

Opinion Letters (WHD)

On June 27, 2017, the Department of Labor announced that they will reinstate the issuance of Wage and Hour Division opinion letters.

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On January 5, 2018, the Wage and Hour Division reissued 17 opinion letters that had been issued during the last days of the Bush administration and withdrawn by the Obama administration.

On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage Hour Division released three opinion letters regarding the legality of certain arrangements under the Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), and Title III of the Consumer Credit Protection Act (CCPA).

Payroll Audit Independent Determination (PAID - WHD)

On March 6, 2018, the Wage and Hour Division announced a nationwide, 6-month pilot program aimed at encouraging employers to audit their books to look for potential violations of the Fair Labor Standards Act. If such violations are found, businesses will have to pay workers’ wages they are owed but won’t be subject to fines and could avoid litigation.

Under the pilot, the Wage and Hour Division plans to assess the amount of wages due and supervise payment to employees. The pilot would not require payment of additional damages or civil monetary penalties when employers proactively resolve the compensation practices that led to such infractions. According to a description of the pilot, employers would offer employees the option of taking back wages. If an employee accepts the payment of back wages, they would then release their right to sue their employer for the specific violation identified. It would be the employee’s choice whether or not to accept the payment. If workers accepted the terms set out by the employer, they would be paid shortly after violations are discovered, and not have to wait for the outcome of Department of Labor investigations or lawsuits.

Companies would not able to use the voluntary audit process to resolve claims already under investigation by the Department of Labor or subject to ongoing court fights.

After the six-month pilot is complete, the Labor Department plans to evaluate the effectiveness of the program before determining its next steps.

Field Assistance Bulletin No. 2018-3 (WHD)

On April 6, 2018, the Wage and Hour Division issued Field Assistance Bulletin, No. 2018-3, “Amendment to FLSA Section 3(m) Included in the Consolidations Appropriations Act, 2018.” The Field Assistance Bulletin provides guidance concerning the Wage and Hour Division’s (WHD) enforcement of tip credit rules under the Fair Labor Standards Act (FLSA) after Congress amended the FLSA in the Consolidated Appropriations Act, 2018.

Compliance Evaluation Experience Survey (OFCCP)

On April 9, 2018, OFCCP deployed its 2018 Compliance Evaluation Experience Survey to federal contractors that have undergone a compliance evaluation in the prior five years. The survey collects information on contractors’ experiences during compliance evaluations to identify areas where OFCCP can strengthen its outreach and education, training, and processes.

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Immigration Regulatory Activity

Executive Actions

Border Security and Immigration Enforcement Priorities

On January 25, 2017, President Trump signed Executive Order 13767, entitled “Border Security and Immigration Enforcement Improvements” that, among other things, directed the Secretary of Homeland Security to build a wall on the southern border between the U.S. and Mexico, ordered the issuance of “new policy guidance to all Department of Homeland Security personnel” to end the practice known as “catch and release,” and sets forth a goal of hiring 5,000 additional Border Patrol agents. This order also provided for foreign aid reporting requirements pertinent to “identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico on an annual basis over the past five years,” permitted state and local officials to enter into agreements with the Secretary of Homeland Security under Section 287(g) of the Immigration and Nationality Act, and authorized the Secretary of Homeland Security to promulgate regulations revising the parole and asylum provisions of Federal immigration law. Moreover, the order authorized federal government officials to enter federal lands to enforce immigration laws, required the Attorney General to establish prosecutorial discretion guidelines, and demanded that the Secretary of Homeland Security report “on a monthly basis and in a publicly available way, statistical data on aliens apprehended at or near the southern border.”

On February 20, 2017, the Department of Homeland Security published the implementation memo, “Enforcement of the Immigration Laws to Serve the National Interest.”

On January 25, 2017, President Trump signed Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States” that, among other things, set forth a policy to ensure that jurisdictions that do not comply with federal law (typically referred to as “Sanctuary Cities”) do not receive federal funds and that the Department of Homeland Security (DHS) establishes immigration enforcement priorities to remove aliens that have a criminal history.

This order also called for the Secretary to hire 10,000 new Enforcement and Removal Officers (ERO) within U.S. Immigration and Customs Enforcement.  With regard to sanctuary jurisdictions, DHS will have the authority to designate an area as a sanctuary jurisdiction and the Justice Department will have the authority to take appropriate enforcement actions against said jurisdictions.  

DHS is also ordered to end the Priority Enforcement Program (PEP), which was established by former President Obama in conjunction with his executive action announcement in November 2014, and DHS will reinstitute the Secure Communities Program that was eliminated in the wake of President Obama’s Executive Action announcement. 

Lastly, and this could be problematic if exercised, the order also directs DHS and the State Department to effectively implement Section 243(d) of the INA, which allows the State Department to halt the issuance of both nonimmigrant and immigrant visas to nationals of

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countries if their home country either refuses to take their nationals back if they are being removed from the U.S., or if said country unreasonably delays the repatriation of their nationals that are being removed from the U.S.    

On February 20, 2017, the Department of Homeland Security published the implementation memo, “Implementing the President’s Border Security and Immigration Enforcement Improvement Priorities.”

On January 27, 2017, President Trump signed Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” A description of the E.O is below:

There was a 90 day suspension on the entry of nationals from the following countries: Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen.  Diplomats and other government officials were excepted from this proposed ban.  Furthermore, State and DHS jointly retained the authority to issue a foreign national from one of these countries a visa or other immigration benefits on a case-by-case basis if doing so was in the national interest.

DHS, the State Department, and the Director of National Intelligence must have conducted a review to ensure that foreign countries provide us with the necessary information to adjudicate any petition/application for immigration benefit such that the federal government can determine that the individual is who they claim to be and that they are not a security or public-safety threat.  These three agencies must have then issued a report on their findings within 30 days of the issuance of this order. If the State Department determined that there were countries that did not provide the necessary information to the federal government for the stated purposes, then the State Department must have requested that these countries start providing this information to the federal government within 60 days. If these countries did not cooperate, the State Department would have then been required to include those countries on a list that recommends to the President a bar on entry to the U.S. for foreign nationals from those states.

The order called upon DHS, the State Department, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation to create uniform vetting standards to identify individuals seeking to enter the U.S. on a fraudulent basis or who are at risk of causing harm subsequent to their admission.

The order instituted a 120 ban on the admission of refugees into the U.S., during which time the State Department, DHS, and the Director of National Intelligence would have reviewed the refugee application and adjudication processes to ensure that admitted refugees did not pose a threat to the U.S.  The order directed the State Department to prioritize refugee claims made by individuals who are religious minorities in their home countries, as well lowering the cap on refugee admissions in FY17 from 100,000 individuals down to 50,000 individuals.  The State Department and DHS, however, still would have retained the authority to admit certain applicants for refugee status into the U.S. on a case-by-case basis, provided that doing so would being the national interest.  Lastly, Syrian refugee admissions were suspended indefinitely, and Syrian refugee applicants were not allowed to avail themselves of the aforementioned discretionary authority until the President decides that admissions of refugees from Syria should resume.

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E.O. 13769 suggested that the State Department and DHS, in consulting with DOJ, consider rescinding the exercises of waiver authority with regard to the grounds of inadmissibility with regard to terrorist activities.

The order instructed DHS to expedite the completion of the Biometric Entry-Exit Tracking System.

The President instructed the State Department to suspend the Visa Interview Waiver Program (not to be confused with the Visa Waiver Program) and force people who would otherwise be able to avoid an in-person interview to have to subject themselves to such an interview before obtaining a visa.  This would have caused interview wait times to spike in many consular posts around the world.

The State Department would have been required to review all visa reciprocity agreements with other nations to ensure that they are reciprocal, and if the State Department determined that there isn’t true reciprocity, the Secretary of State would have been required to adjust the visa validity periods, the fee schedule, or other measures to achieve parity in treatment. 

On February 3, 2017, U.S. District Judge James Robart from Washington state issued a temporary restraining order on the implementation of E.O. 13769, which blocked the enforcement of the Executive Order until the court could hold a hearing on a motion for a preliminary injunction. On February 9, 2017, the 9th Circuit Court of Appeals upheld the District Court’s temporary restraining order.

On March 6, 2017, President Trump signed E.O. 13780, which revoked E.O. 13769.

The revised Executive Order made the following changes:

Set the effective date to March 20, 2017. For 90 days, prohibited the entry into the US from six countries: Iran, Libya, Somalia,

Sudan, Syria, and Yemen (this new E.O. omitted Iraq from the list) only for those with new visas (existing visa holders as of January 27, 2017 as well as existing lawful permanent residents, valid visa holders, any foreign national who is “admitted to or paroled into” the United States including those with advance parole, dual nationals, diplomats, governmental officials (G-1 G-2, G-3, or G-4 visas), visitors to the UN (C-2 visas), and NATO officials are exempt; Commissioner or delegate of U.S. Customs and Border Protection may make case-by-case exceptions when “in the national interest.”

In the first twenty days, the Department of Homeland Security was ordered to conduct a country-by-country review of the information the six nations provide to the U.S. for visa and immigration decisions. In the next 50 days, those countries would then have to comply with U.S. government requests to update or improve that information.

The order also made significant changes to the U.S. Refugee Admissions Program. The cap for refugee admissions for the current fiscal year remained unchanged from the initial order at 50,000 and the temporary ban on refugee admissions still lasted for 120 days starting on March 16, 2017, but the order no longer contained the language prioritizing individuals who claim that they are religious minorities in their home country. In addition, the indefinite suspension on refugee admissions from Syria was taken out of the revised order, and the language governing the ability for individual applicants for

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refugee status to obtain waivers is more specific. The revised order contained the suggestion that the State Department and the Department of Homeland Security rescind exercising certain waiver authority relating to certain terrorism grounds of inadmissibility.

The new order called for the immediate suspension of the Visa Interview Waiver Program, of which all countries are eligible, not just the six countries subject to the temporary travel ban. However, the revised order stated that certain statutory exceptions shall apply, thus limiting this provision’s impact to a certain extent.

The revised order also directed the State Department to review all visa validity reciprocity agreements and make certain adjustments to these agreements if other nations do not accord U.S. nationals with reciprocal treatment. Lastly, this new order contains very similar language with regard to the expedited implementation of the biometric entry-exit tracking system; and

Called for expedited completion of the Biometric Entry-Exit system, but the one key distinction is that in the prior order, this system was to cover “all travelers” to the U.S., whereas the language contained in the new order only covered “in-scope travelers to the U.S.”

On March 15, 2017, prior to the second Executive Order taking effect, a Federal District Court in Hawaii and a Federal District Court in Maryland issued a nationwide preliminary injunction, stopping the new E.O. covering terrorist travel, among other things, from taking effect. The administration has appealed both rulings.

On June 26, 2017, the U.S. Supreme Court announced they had planned to grant the federal government’s petition to consider the many issues regarding President Trump’s Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States.” In doing so, the court issued a partial stay of the injunctions that barred the implementation of key provisions of the order, particularly the 90 day restriction of travel to the U.S. by individuals from Iran, Syria, Somalia, Libya, Sudan, and Yemen, as well as the 120 day suspension of the U.S. Refugee Admissions Program.  The court stayed the lower court’s injunctions to the extent that the injunctions prevented the enforcement of the aforementioned provisions “with respect to foreign nationals who lack any bona-fide relationship with a person of entity in the U.S.” Put another way, for individuals who do possess a bona-fide relationship with a person or entity in the U.S., the injunction will remain in place and those individuals should be able to travel to the U.S. 

Since the Court’s ruling, the Chamber has discussed this matter with officials at U.S. Customs and Border Protection.  They informed us that with regard to people who might be subject to these provisions, CBP would be treating individuals who possessed a valid visa as of the date of the Court’s announcement as individuals who possessed the necessary bona-fide relationship with a person/entity in the U.S. such that they would be allowed to travel to the U.S.  As to companies who might have questions about issues of dual citizenship, CBP advised us that if the individual is traveling to the U.S. with a passport from a country that is not subject to the 90 day travel suspension, that individual will be treated as a national of that country and they will be able to enter the U.S.   Per the President’s Memorandum that was issued on this subject on June 14th, the aforementioned provisions of the E.O. went into effect on June 29,, 2017.

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On September 24, 2017, President Trump issued a presidential proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.”

This proclamation was issued pursuant to a worldwide review of the information sharing policies and practices of foreign governments to help support the screening and vetting of foreign entrants into the U.S. The Trump administration maintained or modified restrictions for 5 of the 6 countries designated for travel suspension under E. O. 13780. Those countries are Iran, Libya, Syria, Yemen, and Somalia. This proclamation lifted the travel restrictions that E.O. 13780 imposed on Sudan, and it also added restrictions or imposed additional vetting procedures on 3 additional countries that were not included in Executive Order 13780. These countries were Chad, North Korea, and Venezuela.

On October 17, 2017, Federal District Judge Derrick K. Watson in Hawaii issued a temporary restraining order against the full implementation of this proclamation. Judge Watson’s order prohibited the implementation of the provisions of this proclamation with respect to all the countries except North Korea and Venezuela.

On December 4, 2017, the Supreme Court announced that the policy can take full effect but anticipates that legal challenges will make its way through the judicial system. On April 25, 2018, the Supreme Court heard oral arguments in Trump v. Hawaii. A decision in this case is expected by the end of the current term.

Buy American, Hire American

On April 18, 2017, President Trump signed Executive Order 13788, entitled “Buy American, Hire American.”

Executive Order 13788 was not nearly as detailed or prescriptive as some of the orders the Trump Administration has issued in the immigration space in prior months. Section 2(b) of this Order made a general policy statement that the executive branch will enforce the laws governing the entry of foreign-born workers into the U.S. to boost the wages and employment rates of American workers. 

Section 5 is where the “Hire American” provisions are located in the order. Section 5(a) calls upon the Secretary of State, the Attorney General, the Labor Secretary, and the DHS Secretary to propose new rules and issue new guidance to protect the interests of the U.S. workers in administration of the U.S. immigration system, specifically mentioning fraud/abuse prevention.  Section 5(b) calls upon the four aforementioned cabinet members to suggest reforms to the H-1B program such that visas are awarded to the most-skilled or highest-paid petition beneficiaries.

In sum, the immigration provisions in this Executive Order do not create new obligations or institute any new legal requirements for our members; what this order did was set the tone for what the administration wants to accomplish and telegraphs where the administration is heading from a policy standpoint in the near future. 

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Ending “Catch and Release” at the Border of the United States and Directing Other Enhancements to Immigration Enforcement On April 6, 2018, President Trump signed a memorandum titled, “Ending ‘Catch and Release’ at the Border of the United States and Directing Other Enhancements to Immigration Enforcement.” This Presidential memorandum directs several agencies to issue reports regarding issues pertaining to “catch and release” policies, which are those policies that allow unlawfully present aliens in the U.S. to be released from government custody shortly after their apprehension for violations to our nation’s immigration laws.

The memo calls upon the Department of Homeland Security, in consultation with the Departments of Defense, Justice, and Health and Human Services, to submit a report outlining past and ongoing efforts to end “catch and release” policies within 45 days of the memorandum’s publication. This report must include, among other things, the following: all measures taken to allocate available resources to construct, operate, or modify immigration detention facilities; all measures taken to ensure that parole/asylum laws are not exploited to prevent removal of aliens; a list of all existing facilities (including military facilities) that could be used to detain aliens for immigration law violations.

Within 75 days of the memorandum’s publication, the Attorney General and the DHS Secretary, in consultation with the State and HHS Secretaries, must submit a report to the President identifying any additional resources or authorities that may be needed to expeditiously end “catch and release” practices.

Lastly, President Trump directed the State Department and DHS, to submit a report laying out all measures currently being pursued to ensure removable aliens are repatriated to their home countries. This report will include diplomatic measures being pursued against countries that refuse to take back nationals who are being removed from the United States.

Completed Rulemakings

International Entrepreneur Rule (USCIS)

On August 31, 2016, USCIS promulgated a proposed rule to establish a program that allows consideration for parole into the U.S. on a case-by-case basis for certain entrepreneurs. Under the proposed guidelines, program eligibility will be based upon the individual’s role in creating a start-up enterprise wherein the person’s entry into the U.S. would provide a substantial public benefit through substantial and demonstrated potential for rapid business growth and job creation. This potential could be evidenced by, among other things, the fact that the business has received substantial capital investment from qualified U.S. investors or has obtained significant awards/grants from certain Federal, State, or local governmental entities. Entrepreneurs that qualify for this benefit would be able to stay in the U.S. for a total of 5 years as a parolee in the U.S.

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While this rule is well-intentioned, the Department’s focus on the parole process does not provide putative entrepreneurs with the certainty needed for most start-ups to truly flourish in the U.S.

On October 17, 2016, the Chamber submitted comments with several suggestions on how to improve the initial proposal, which may be accessed here: https://www.uschamber.com/sites/default/files/documents/files/uscc_entrepreneur_comments_final_10-17-16.pdf

On January 17, 2017, USCIS promulgated a final rule that established the rule’s effective date as July 17, 2017.

On July 11, 2017, USCIS announced the agency would delay the final rule’s effective date until March 14, 2018, and would issue a Notice of Proposed Rulemaking soliciting public comments on rescinding the International Entrepreneur rule.

The delay of these regulations was challenged in court. On December 1, 2017, the judge in the case ruled that the regulation could take effect, reversing the rescission. From a technical standpoint, DHS is complying with the court order and implementing the International Entrepreneur Rule that was published in January 2017. However, DHS is simultaneously working to publish a notice of proposed rulemaking that would seek to rescind the rule that created the International Entrepreneur parole program. 

Supplemental Questions for Visa Applicants (USCIS)

On May 4, 2017, the State Department proposed a notice of request for emergency OMB approval on supplemental questions for visa applicants, which would permit the Department of State to perform enhanced screening procedures on a subset of visa applicants. This would include additional information regarding the individual’s travel history, employment history, and social media history, among other information. This was accomplished on an emergency basis, so the initial authority exercised by the State Department was only going to be in effect for a six month period.

On May 18, 2017, the Chamber, in conjunction with the U.S. Travel Association, and the American Hotel and Lodging Association, submitted comments on the May 4th notice, which may be accessed here: https://www.uschamber.com/sites/default/files/usta-ahla-uschamber_cmt_on_dos-2017-0019_-_supplemental_questions_for_vi.pdf

On August 3, 2017, the State Department issued another notice that sought to make these types of changes to this information collection process permanent. On October 2, 2017, the Chamber, in conjunction with the U.S. Travel Association and American Hotel & Lodging Association, resubmitted our comments, along with a cover letter, expressing our collective concern with the State Department’s statement in the notice that it might alter the scope of these information collection changes without providing notice to the public, which may be accessed here: https://www.uschamber.com/sites/default/files/coalition_comment_-_supplemental_questions_for_visa_applicants_-_state_dept_10-2-2017_final.pdf

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On November 27, 2017, the Department of State submitted the information collection request to the Office of Management and Budget to make the information collection request permanent. Comments were due by December 27, 2017.

The Chamber submitted comments with the U.S. Travel Association and the American Hotel & Lodging Association on this notice, which can be found here: https://www.uschamber.com/sites/default/files/coalition_letter_final_12-21-2017.pdf.

Rulemakings Underway

EB-5 Immigrant Investor Program Modernization (USCIS)

On January 13, 2017, USCIS promulgated a proposed rule to update EB-5 regulations that attempt to provide more clarity to the program’s requirements. The proposed regulations addressed the issues of Targeted Employment Area designations, indirect job creation, required investment amounts, the effects of material changes on conditional residency, the regional center designation process, and monitoring for regional center compliance.

On April 11, 2017, the Chamber submitted comments, objecting to the proposed rule on various grounds, which may be accessed here: https://www.uschamber.com/sites/default/files/final_uscc_eb5_nprm_comment_4-11-2017.pdf

The Fall 2017 regulatory agenda published on December 14, 2017, indicates that the final regulations were anticipated to be published in February, 2018. That deadline was not met, in large part, because of the ongoing legislative effort to provide a long term reauthorization and reform of the EB-5 Regional Center program. Negotiations proved to not be fruitful in March during the run-up to the omnibus appropriations legislation and USCIS officials have publicly stated it is their goal to finalize the NPRM by the end of 2018.

Social Media Questions for Visa Applicants (USCIS)

On March 30, 2018, the Department of State submitted an information collection request to the Office of Management and Budget that would require visa applicants to submit five years of social media handles for specific platforms identified by the government --- and with an option to list handles for other platforms not explicitly required. In addition to requiring the five years of social media history, the application will also ask for previous telephone numbers, email addresses, prior immigration violations and any family history of involvement in terrorist activities. Comments on this proposal are due by May 29, 2018. The Chamber will be working with the U.S. Travel Association and the American Hotel and Lodging Association to prepare comments on this proposal.

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ETA 9035 Changes

On August 3, 2017, the Employment and Training Administration promulgated revisions to ETA Form 9035, otherwise known as the Labor Condition Application, using the Paperwork Reduction Act.

On October 2, 2017, the Chamber submitted comments, expressing concerns with the proposed revisions, which may be accessed here: https://www.uschamber.com/sites/default/files/uscc_comments_laborconditionapplicationform_eta9035_dol_10-2-2017_final.pdf

Labor Certification Process for the Temporary Employment of Aliens in Non-Agricultural Employment in the United States (ETA)

Due to the volume of petitions filed by employers seeking H-2B visas for the second half of FY18, the Office of Foreign Labor Certification (OFLC) changed its process regarding the issuance of final labor certification decisions. In short, DOL instituted a lottery for the approval of temporary labor certifications associated with the H-2B program. This process change reflected the sequential order in which employers filed applications. This rule only reflected the treatment of labor certification applications by DOL for the remainder of FY18, but given that the demand for H-2B visas is not likely to decline in the near future, these types of processes will likely be used in future situations where the amount of H-2B workers sought by employers is substantially higher than the supply of H-2B visas provided under the Immigration and Nationality Act.

Anticipated Rulemakings

H-2B Visa Cap Relief

The Chamber was successful in obtaining the same discretionary H-2B cap relief language from the FY17 omnibus appropriations legislation in this year’s omnibus package. The Chamber and its allies in the H-2B Workforce Coalition are pressing the administration to exercise the authority Congress provided to it. DHS and DOL are discussing the issuance of an Interim Final Rule in the Federal Register, which would be similar to the approach they took last year. The Chamber is hopeful that the administration in a more expeditious manner than it did last year, as well as provide more visas for H-2B employers than it did last year.

Implementation of the Electronic System for Travel Authorizati on (ESTA) at U.S. Land Borders Automation of CBP Form I-94W   (CBP)

Visa Waiver Program travelers will provide certain biographic information to CBP electronically through ESTA prior to application for admission to the United States. DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry. An interim final rule was expected to be issued in April, 2018. 

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Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations (USCIS)

Given that the demand for cap-subject H-1B workers is consistently much higher than the supply of visas allotted in a given fiscal year, USCIS is proposing to amend its regulations and establish an electronic registration program for petitions subject to annual the H-1B numerical limitations. It is possible that USCIS uses this opportunity to try to institute a modified H-1B lottery where the petition selection process in the lottery is not entirely “random” and takes into account other criteria, such as the worker’s occupation, wage rate, etc. It is an unsettled legal question as to whether this can be done administratively. A proposed rule was projected to be issued in February, 2018.

Adjustments to the Fee Schedule (USCIS)

The Department of Homeland Security plans to issue a proposal to adjust the USCIS fee schedule for various petitions. A proposed rule is projected to be issued in October, 2018. If the past is prologue, the costs for processing petitions that are important to employers will increase substantially.

Rescission of H-4 Spousal Work Authorization

On May 12, 2014, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) proposed amendments to its regulations by publishing a Notice of Proposed Rulemaking that would extend the availability of employment authorization to certain H-4 dependent spouses. H-4 spouses will be eligible for work authorization if the principal H-1B visa holder is the beneficiary of an approved I-140 or has had his/her H-1B status extended under the provisions of the American Competitiveness in the 21st Century Act of 2000. USCIS believes that allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies, and thus allow the U.S. to remain a world leader in high technology. While at one point USCIS only wanted to propose H-4 work authorization where the H-1B principal worker had been waiting at least six years, the Chamber was pleased to see that the published NPRM allows any H-4 spouse request work authorization where the principal H-1B worker’s employer has completed all steps in sponsorship and the H-1B worker is merely waiting for visa availability. The Chamber has advocated for the creation of employment authorization for H-4 dependent spouses of principal H-1B nonimmigrants being sponsored for permanent resident status.

On July 11, 2014, the Chamber submitted comments, which may be accessed here: https://www.uschamber.com/sites/default/files/documents/files/USCC%20H4%20comment%207-11-2014.pdf

On February 25, 2015, the Department of Homeland promulgated the final rule and the rule went into effect on May 26, 2015.

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The Trump administration is proposing to rescind this regulation. A proposed rule to rescind this regulation was anticipated February, 2018. Public statements made by the administration in ongoing litigation concerning the H-4 Spousal Work Authorization rule indicate that the administration intends to issue the NPRM rescinding the Obama-era rule sometime this summer.

Strengthening the H-1B Program (USCIS)

A proposed rule is being promulgated to make various reforms to the H-1B program, including revising the definitions of “specialty occupation”; “employment” and “employer-employee” relationship. The issuance of a proposed rule is anticipated for October, 2018.

Pr actical Training Reform (ICE)

The Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) is planning to issue a Notice of Proposed Rulemaking that will institute additional protections for U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas under the Curricular Practical Training and Optional Practical Training programs. ICE has stated that this rule is designed to be a comprehensive reform of practical training options for international students and is aimed at reducing fraud and abuse of the programs. A proposed rule in expected in October, 2018.

EB-5 Immigrant Investor Regional Center (USCIS)

On January 11, 2017, USCIS promulgated an Advanced Notice of Proposed Rulemaking considering making changes to the EB-5 Immigrant Investor Regional Center Program. Many of the issues discussed in the ANPRM concern the types of integrity measures that the Chamber sought to achieve through legislation.

The Fall 2017 regulatory agenda published December 14, 2017, indicates a proposed rule is expected, October, 2018.

Significant Non-Regulatory Activities

Suspension of Premium Processing (USCIS)

On March 20, 2018, USCIS announced that they were temporarily suspending premium processing for all FY 2019 cap-subject H-1B petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. This is different from USCIS’s actions last year because USCIS is accepting premium processing requests for H-1B petitions that are not subject to this year’s cap. While this suspension was not welcome news, the level of disruption will not be as severe this year as it was last year.

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PERM Actual Minimum Requirements (DOL-ETA)

On March 6, 2017, the Department of Labor published a FAQ entitled, “Actual Minimum Requirements Frequently Asked Questions.” The FAQ document changes how specific an employer must be in describing the actual minimum requirements for a particular job on the ETA Form 9089. In short, this guidance document will require employers to be much more specific in laying out the type of knowledge, experience, or educational attainment that is required to perform the duties associated with a particular job. For example, saying that a job requires “experience in Java and C++” will no longer be sufficient for the purposes of applying for PERM and such a case would be deniable by DOL. Moving forward, employers will be required to state that a job requires “at least 12 months experience of using Java and 18 months experience in working with C++” in order for the case to avoid being denied by the Labor Department. This guidance, which was issued on March 6, 2017 was scheduled to go into effect March 20, 2017. However, on March 10, 2017, ETA issued PERM FAQ Round 14, announcing that they were temporarily removing this proposed guidance from the website and would reissue it at a date to be determined.

Mandatory Interviews for Employment Based Legal Immigration ( USCIS )

On August 28, 2017, USCIS announced that the agency is expanding the interview requirement to all employment-based immigrant visa beneficiaries that seek to obtain their green card through the Adjustment of Status process effective October 1, 2017. On August 31, 2017, the U.S. Chamber wrote a letter to USCIS that expressed concerns with these changes, which may be found here: https://www.uschamber.com/letter/letter-dhs-new-mandatory-interviews-employment-based-legal-immigration

Memorandum on Rescission of DACA

On September 5, 2017, DHS announced that it is rescinding the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the Deferred Action for Childhood Arrivals (“DACA”) program. The Trump administration will be winding down the DACA program over a six-month period. As this will impact approximately 800,000 individuals, the U.S. Chamber has been, and will be continue to be, active in advocating for a legislative remedy to fix this problem.

The Chamber sent a letter to Congress urging them to enact legislation that will provide relief for young immigrants known as Dreamers, and another letter to Acting DHS Secretary Elaine Duke asking the agency to extend the October 5 filing deadline for current DACA recipients to renew their DACA status. In addition, the Chamber issued a statement supporting the introduction of the SUCCEED Act in the U.S. Senate, and issued two blog posts (here and here) urging Congress to enact a permanent legislative solution for Dreamers.

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Memorandum of Understanding Between the Department of State Bureau of Consular Affairs and U.S. Department of Justice Immigrant and Employee Rights Section Civil Rights Division on Information Sharing

On October 11, 2017, the Department Of Justice’s Immigrant and Employee Rights Section and the State Department’s Bureau of Consular Affairs signed a memorandum of understanding to share information about employers “that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas.” This memorandum covered several temporary visa categories, including as the H-1B specialty occupation worker classification, the H-2A seasonal agricultural worker classification, and the H-2B nonagricultural seasonal worker classification.

Extending Temporary Protected Status Designations for El Salvador, Honduras, and Haiti (DHS)

DHS is contemplating the continued existence of certain designations of Temporary Protected Status for many countries, including those for El Salvador, Honduras, and Haiti. On October 30, 2017, the U.S. Chamber wrote a letter to Acting Homeland Security Secretary Elaine Duke supporting such the extension of the designations for these three countries. On November 6, 2017, DHS made announcements regarding the TPS designations for Nicaragua and Honduras. While DHS decided to eliminate the designation for Nicaragua in 2019, the Department felt that more information was needed in order to make a decision regarding the designation for Honduras and the Honduran designation was extended for another six months.

In November, DHS decided that conditions in Haiti no longer justified a continuation of a designation for Temporary Protected Status; the same decision was made for El Salvador in January. We’re expecting a similar decision by DHS for Honduras; we anticipate this announcement being made sometime around May 7th, 2018.

Policy Memorandum Rescinding Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (USCIS)

On October 23, 2017, USCIS issued a policy memorandum rescinding the April 23, 2004 memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015 policy memorandum titled “L-1B Adjudications Policy.”

The rescinded 2004 memo had directed adjudicators to defer to prior determinations of eligibility, except in certain circumstances. Similarly, the 2015 memo regarding L-1B adjudications directed USCIS adjudicators, in the context of L-1B petition extensions, to give deference to the prior determinations of eligibility by USCIS, except in certain circumstances. USCIS stated in the memo that adjudicators should not feel limited in their ability to request additional evidence on petitions for extension. As such, companies can expect to see an increase

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in the amount of requests for evidence they will receive when they seek to extend the legal status of their current nonimmigrant workers.

Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (USCIS)

On February 22, 2018, USCIS issued a policy memorandum that provides that for an H-1B visa petition involving a third-party worksite to be approved, the petitioner must show “by a preponderance of evidence” that, among other things, the beneficiary will be employed in a specialty occupation and the petitioning employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. While USCIS claims this memorandum clarifies current regulatory requirements, this memo, in fact, creates several new burdensome obligations for not just for H-1B employers who place their workers at the worksites of their clients, but also the third-party end-user client companies. The Chamber has created an ad hoc working group to address the issues raised in this memorandum. The Chamber has also engaged in an ongoing dialogue with the DHS Private Sector Office to obtain clarity on how USCIS intends to implement this memo’s requirements moving forward.

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