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The Weekly Round-Up: H-1B Visa Applications Expected to Surge, DACA Fight Continues Potentially Forcing Government Shutdown, and States and Federal Government at Odds Over Immigration Enforcement

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H-1B Visas

The number of applications for H-1B visas – reserved for foreign professionals seeking to work in skilled positions in the United States – is expected to rise this year, and employers need to prepare accordingly.

The law caps the number of available visas at 85,000 (with 20,000 reserved for those with a master’s degree), and the 85,000 recipients are chosen at random through a lottery system.  Last year, U.S. Citizenship and Immigration Services (USCIS) received 199,000 applications; in 2016, USCIS received 236,000 applications – as a result, a majority of applicants are turned down.  With an increase in applications, the percentage of approvals will of course go down, creating uncertainty for employers.

President Trump’s “Buy American, Hire American” executive order is also adding a layer of complexity – pursuant to this order, the White House may seek to limit the number of professions that qualify for the H-1B visa, potentially requiring greater skills and/or income to satisfy visa requirements.

Employers looking to apply for H-1B visas should carefully review the skill level and education level of their prospective employees.  Please consult with an experienced immigration attorney for any further questions regarding H-1B applications.

DACA & Government Shutdown

Congress is moving towards a government shutdown at midnight on Friday, as Democrats in the Senate steadfastly refuse to support a short-term bill aimed at keeping the government open unless protections are afforded to recipients of DACA, an Obama program to shield from deportation undocumented individuals who came to United States as children.

The House passed a short-term spending bill on Thursday, but Senate Democrats, along with some Republicans, have announced opposition to the measure.  The short-term bill does not contain an extension of DACA, which is set to officially expire in March.  The bill would need 60 votes to pass, but even with all the Senate Republicans in favor, the bill would still require a handful of Democrats to vote support it.  Without a measure extending DACA, Democrats are unlikely to vote for the bill that would avoid a government shutdown.  Such a shutdown would add heavy stress to the immigration system, as many government departments, including the immigration courts, would close, causing further backlogs to an already burdened court system.

State & Federal Government at Odds Over Immigration

California officials are responding to Federal Immigration and Customs Enforcement (ICE) officials preparing a possible major sweep in northern California, hoping to arrest and detain undocumented immigrants.  Earlier this month, acting ICE Director Thomas Homan warned: “California better hold on tight. . . . If the politicians in California don’t want to protect their communities, then ICE will.”  In response, California Attorney General Xavier Becerra issued his own warning to businesses that they may face a fine of up to $10,000 should they illegally share information about their employees with immigration officials after the enactment in 2017 of two new state laws.  The laws aim to provide greater protection to immigrants living in California, including barring employers from giving access to workplace and employment records to federal officials unless a subpoena or warrant was issued.

Following in the footsteps of California and other states, newly-inaugurated New Jersey governor, Phil Murphy, announced a goal of creating an Office of Immigrant Defensive Protection, a state agency that would protect the rights of all immigrants, documented and undocumented.  This will likely cause tension between the federal and state governments.  We will continue to follow this issue as it develops.

If you have questions about this post or any other immigration topic, please feel free to contact me at wcmenard@nmmlaw.com.