Immigration Provisions in the Upcoming Appropriations Bills

• As Congress prepares to finalize the appropriations bills for the upcoming fiscal year, many groups are working to include immigration provisions in the legislation. These provisions could include the Afghan Adjustment Act, legislation for DACA beneficiaries and other Dreamers, EB-5 reform and corrections, and immigrant visa relief. Given the possibility of a government shutdown as a result of the appropriations bills, immigration provisions may not be included

• The House Appropriations Committee has already passed its version of the Department of Homeland Security (DHS) appropriations bill, which includes a provision to exempt returning H-2B workers from the 66,000 cap on the total number of noncitizens who may receive an H-2B visa. The Senate Appropriations Committee is currently considering its own version of the bill, and it is expected to include similar language.

• The House Appropriations Subcommittee that oversees Department of Labor (DOL) funding passed a bill that would continue some H-2B regulatory relief provisions. It would allow for staggered crossing for seafood workers, allow the limited use of prevailing wage surveys, provide for a maximum 10-month season, and prohibit DOL from enforcing the corresponding employment of three-quarters guarantee provisions of the current H-2B regulations.

• The Senate Committee bill also includes report language asking the DOL to submit reports related to the semi-annual visa distribution, the economic impact of the program by state, estimated visa demand, and labor violations of H-2B and H-2A users. It also expresses support for visas set aside for workers from the Northern Triangle countries (El Salvador, Guatemala, and Honduras).

DHS Overwhelmed by Applicants for Humanitarian Parole Program

• The Biden administration announced a new humanitarian parole program earlier this year for nationals of Cuba, Haiti, Venezuela, and Nicaragua. While the program authorizes humanitarian parole for 30,000 applicants per month, since January 2023, DHS has allegedly received more than 1.5 million applicants for the program. Customs and Border Protection (CBP) has released the number of applications processed each month for January through April 2023, as follows:

  • January: 11,637

  • February: 27,755

  • March: 27,783

  • April: 28,738

The published reports for May and June do not include numbers for this program.

• In May 2023, CBP released a statement describing the system put in place to review and approve the large amount of applications – 50% of applications will be processed based on date of filing and 50% will be selected randomly. Many applicants have not received any notice from CBP, indicating an overwhelming backlog.

• The humanitarian parole program is designed to help individuals fleeing violence and persecution, but the current backlog is hindering its success.

New I-9 Form and the new document inspection procedures

• On Aug. 1, 2023, USCIS implemented updates to the Form I-9, Employment Eligibility Verification. The revised form includes a new alternative document examination procedure, allowing employers enrolled in E-Verify to review copies of identity and employment authorization documents, instead of requiring in-person document inspection and verification.

• To utilize the new alternative document inspection process, employers enrolled in E-Verify must retain copies of all documents examined and conduct a live video interaction with the employee. Employers who used E-Verify during the COVID-19 flexibilities period can implement the new alternative procedure starting Aug. 1, 2023, to satisfy the physical document examination requirement, which must be completed by Aug. 30, 2023.

• The revised Form I-9 introduces changes to streamline the process, reducing the form to a single-sided sheet and making it fillable on tablets and mobile devices. The “Preparer/Translator Certification” and Section 3 pertaining to Reverification and Rehire are now separate supplements, and the “Lists of Acceptable Documents” page has been updated to include some acceptable receipts.

• These changes aim to bring greater flexibility and convenience to employers while maintaining the security and accuracy of the employment eligibility verification process. While employers can continue using the current form (edition date 10/21/19) until Oct. 31, 2023, from Nov. 1, 2023, onwards, all employers must transition to using the new Form I-9.

• Employers should familiarize themselves with these changes and consider implementing new procedures to ensure compliance with the revised Form I-9 and the alternative document examination process.

Processing Backlogs Create Delays to the Green Card Process

• The U.S. immigration system is facing a serious backlog in the processing of employment-based immigrant visas. This backlog is due to a number of factors, including the Department of Labor’s slow processing of PERM labor certifications and prevailing wage requests, the high volume of pending I-140 petitions at USCIS, and the limited number of EB-2 and EB-3 visas available annually.

• As a result of this backlog, individuals starting the PERM process today can expect to wait several years before they will become eligible for consular processing or adjustment of status. For individuals from high-demand countries like India and China, the wait times are even longer.

• This backlog is impacting businesses that rely on immigrant workers. Many businesses are unable to hire the skilled workers they need because of the long wait times for visas, leading to job loss and negative economic effects.

• With legislation, Congress could recapture unused immigrant visas and/or eliminate derivative family members for the visa count and increase visa numbers. This would allow more individuals to immigrate to the United States and help to address the labor shortage.

IER Focuses on Employer Recruitment and I-9 Practices

The Department of Justice’s Immigrant and Employee Rights Section (IER) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. The following summarizes recent settlements with the business community. 

• Mountain Prairie Holdings agreed to undergo training and make policy changes before hiring any more employees, be subject to departmental monitoring, and pay a civil penalty of $7,588. The company was found to have discriminated against a work-authorized asylum applicant as part of its pattern or practice of requiring certain non-U.S. citizens to show specific documents to prove their work authorization because of their citizenship status.

• Treacy Enterprises agreed to pay a civil penalty and change its recruiting practices to avoid future discriminatory postings. The company was found to have violated the Immigration and Nationality Act’s antidiscrimination provision by requiring a lawful permanent worker to provide more documents than necessary to prove their permission to work.

• N2 Services, Inc. agreed to pay a civil penalty, post notices informing workers of their rights, train its staff, review and revise its employment policies and training materials, and be subject to departmental monitoring for two years. The company was found to have discriminated against workers based on their citizenship status when it published a discriminatory job advertisement online that required applicants to have a temporary work authorization status called Optional Practical Training.

• Ten employers agreed to pay civil penalties totaling $464,360 and change their recruiting practices to avoid future discriminatory postings. These employers were found to have posted job advertisements with unlawful citizenship status restrictions on a college recruiting platform.

The DOJ’s settlements with these employers are a reminder that the department is committed to investigating employers that discriminate against workers based on their citizenship status. Employers are encouraged to review their recruitment policies and advertisements to confirm that they are in compliance.