Category: Alerts

Democrats in Congress have introduced the U.S. Citizenship Act of 2021, advancing the Biden Administration’s efforts for reform of the U.S. immigration system.  Democrats will need 60 votes in the U.S. Senate to overcome a filibuster.

The bill includes a broad swath of reforms affecting the U.S. undocumented population, the family-based and employment-based immigration systems, and border management. Notably, the bill would create an 8-year path to citizenship for undocumented individuals.  Given the challenge of passing comprehensive reforms, various provisions, such as the Dream Act, may be sectioned off and advanced where there may be greater bi-partisan support.

Key provisions affecting employers and foreign workers include:

• PhD holders in STEM fields from an accredited U.S. institution of higher education, individuals with an approved immigrant petition bearing a priority date more than 10 ago, and spouses and children of employment-based applicants would all be exempted from the numerical limitations on employment based immigrant visas, substantially reducing overall backlogs;
• Elimination of the 7% per-country ceiling on employment-based immigrant visas;
• Reduction of the EB-1 and EB-2 preference categories from 28.6% to 23.55%, and increase of the EB-3 category from 28.6% to 41.2% of the employment-based worldwide level;
• Expanding the limit on EB-3 unskilled workers from 10,000 to 40,000;
• Provisions for temporary limitations on immigrant visas for areas with high unemployment;
• Temporary pilot program for 10,000 additional visas for regional economic development, subject to the labor certification process;
• Discretion to prioritize employment-based nonimmigrant visas based on offered wages;
• Eliminating the requirement of non-immigrant intent for F-1 students pursuing a full course of study;
• Establishing age-out protections for H-4 dependent children who were younger than 18 years when first granted non-immigrant status;
• Eligibility for EAD work authorization for both spouses and children in H-4 status; and
• Max-out protections and eligibility for status extensions in 1-year increments and work authorization for F-1, H-1B, L-1 and O-1 visa holders with a PERM labor certification or I-140 immigrant petition filed more than 365 days ago.

Gibney will continue to monitor developments, and will work with clients to analyze the impact on foreign national employees.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Department of Homeland Security (DHS) announced that it will delay the effective date of the January 8, 2021 rule modifying the H-1B cap selection process  to prioritize high wage earners until December 31, 2021. This means that the fiscal year (FY) 2022 H-1B cap registration and selection process will proceed as it did last year, with selection based on a random lottery. The stated rationale for delaying the effective date of the January 8 rule is to provide USCIS with adequate time to complete system development, test system modifications, train staff, and conduct public outreach, though it was also noted that DHS leadership will further evaluate the legacy Trump Administration rule and its associated policies.

Additionally, today USCIS announced that the initial registration period for the FY 2022 H-1B cap will open March 9, 2021 at Noon Eastern Time (ET) and will close on March 25, 2021 at Noon ET.

FY 2022 H-1B CAP REGISTRATION – WHAT EMPLOYERS CAN EXPECT

Employers intending to file H-1B cap petitions for an employment start date of October 1, 2021 will have from March 9 to March 25 to electronically register each intended beneficiary and pay the associated $10 H-1B registration fee. The random H-1B cap lottery will be conducted after the registration period concludes, and employers will then be notified when to submit H-1B petitions for selected beneficiaries during a designated filing period expected to commence April 1. The agency may determine it is necessary to open an additional registration period later in the year if it does not receive enough registrations and subsequent petitions projected to reach the annual quota.

Gibney will continue to provide updates, and will be working with clients to prepare for the upcoming H-1B cap registration process.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as Department of Homeland Security (DHS) Secretary and President Biden signed three immigration orders aimed at reunifying children separated from their parents at the U.S.-Mexico border, addressing the U.S. southern border and asylum system, and improving the U.S. legal immigration system.

The latter, the Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans , stands to have the most direct impact on businesses hiring foreign workers. The order:

• Directs the White House Domestic Policy Council to create a task force to coordinate the federal government’s efforts to welcome immigrants, and improve and support immigration processes.
• Charges the Attorney General, the Secretary of State and the Secretary of DHS with
• reviewing existing regulations, orders, guidance and policies (collectively “agency action”) with a view to identifying barriers that impede access to immigration benefits and the fair and efficient adjudication of benefit applications.
• identifying agency actions that fail to promote access to the legal immigration system and rescinding or revising the policies and practices as appropriate.
• Submitting a plan within 90 days to advance policies consistent with improving and supporting immigration processes to welcome immigrants.
• Mandates immediate agency review of the public charge rule,  and requires agencies to address concerns with the policy and its impact on immigration processes and public health.
• Directs the Attorney General, the Secretary of State and the  Secretary of DHS to promote the naturalization process by eliminating barriers to naturalization, substantially reducing backlogs, improving the process, and promoting naturalization generally.

Impact Assessment

While the order does not advance a specific policy, its impact may be far reaching in the months ahead.  Numerous Trump Administration actions were implemented to create barriers to legal immigration, including agency action stemming from the Buy American, Hire American Executive Order . This included rescission of agency policies that gave deference to prior agency approval of benefits applications, and imposed a level of application scrutiny that exceeded statutory and regulatory authority. The result was a significant increase in requests for evidence, application backlogs, unconscionable adjudication delays, and denial of benefit applications.  U.S. businesses employing foreign nationals experienced a lack of predictability in adjudications, increased costs associated with sponsorship, interrupted  business continuity, and a loss of access to foreign talent generally.

Yesterday’s  order, together with last week’s order revoking the Buy American, Hire American order, signals that the Biden Administration  is set on reversing restrictionist Trump-era immigration policies with a view to restoring integrity and enhancing efficiency in the legal immigration system.   Additionally, and notably, DHS Secretary Mayorkas previously served as the director of U.S. Citizenship and Immigration Services (USCIS) under the Obama Administration. His experience leading USCIS – the benefits agency within the Department of Homeland Security – is another signal that the Biden Administration will prioritize and emphasize improving access to legal immigration benefits.

For additional information on the Biden Administration’s impact on U.S. immigration, please contact your designated Gibney representative or email info@gibney.com.

On its first day in office, the Biden Administration acted to reverse numerous hardline immigration policies from the prior administration and to advance immigration reforms.  Some action comes in the form of executive orders and directives that take effect immediately, while other initiatives will be advanced through legislation, requiring Congressional approval.

Regulatory Freeze Pending Administration Review

The White House issued a memorandum directing all federal agencies to immediately withdraw  pending regulations that have not yet been published in the Federal Register and to consider postponing for 60 days the effective dates of regulations that have been published but have not yet taken effect.  Impacted regulations include those advanced by U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) in the weeks following the election.

• The USCIS rule modifying the H-1B cap selection process to favor high-wage earners scheduled to take effect March 9, 2021 may be postponed until March 21, 2021, making it less likely to be implemented in time for the fiscal year (FY) 2022 H-1B cap selection process.
• A  DOL rule dramatically increasing prevailing wage requirements for H-1B and E-3 temporary visas and PERM labor certification sponsorship, reissued by DOL on January 14, 2021 and set to take effect March 15, 2021, is also now in suspense. Under the rule, implementation of the new prevailing wage scheme would occur as of July 1, 2021, outside of the 60 day moratorium period.  As a result, it is not clear whether this rule will be covered by the White House memorandum. An earlier version of the rule, published in October 2020, was struck down by a federal court as unlawful, and similar legal challenges are expected if the re-issued regulation remains in place.
• A rule aimed at amending how USCIS would determine whether there is an employer-employee relationship for the purpose of H-1B sponsorship was signed on January 14, 2021, but was not published. As such, it  has been withdrawn. The corresponding DOL guidance and policies, set to take effect 180 days from January 15, 2021, have also been withdrawn.

Travel Bans

• President Biden signed a  Proclamation on Ending Discriminatory Bans on Entry to the United States, revoking Trump era executive orders and proclamations  imposing visa restrictions on nationals from predominately Muslim-majority and African countries. The proclamation directs the Department of State to take action through its Embassies and Consulates to resume visa processing for impacted individuals and to develop a plan to redress visa denials and rejections issued under the prior bans.
• Just before leaving office, the Trump Administration announced a January 26, 2021 termination date for the Covid-19 regional  travel bans in place for individuals traveling to the U.S. from Europe, the United Kingdom, Ireland and Brazil. Notably, January 26 is the same day that CDC international traveler Covid testing requirements take effect. However, it has been widely reported that the Biden administration  intends to keep the Covid-19 regional travel bans in place along with the CDC’s Covid testing requirement for all international travel to the U.S.

DACA

• President Biden issued a memorandum directing the Secretary of Homeland Security and the Attorney General to take all action necessary and appropriate to preserve and fortify the Obama-era  Deferred Action for Childhood Arrivals (DACA)  program. The DACA program defers deportation of certain undocumented immigrants brought to the U.S. as children, often referred to as “Dreamers,” and provides work authorization.  The prior administration spent years trying to rescind the DACA program, but was ultimately constrained from doing so by the U.S. Supreme Court. Currently, USCIS instructions provide  that  eligible individuals may submit first-time requests for DACA classification as well as requests to renew DACA classification and extend work authorization.

Immigration Legislation

The Biden Administration introduced an immigration reform bill, the U.S. Citizenship Act of 2021, which, If enacted, would reportedly include provisions to:

• Create an earned roadmap to lawful permanent resident status and citizenship for certain undocumented immigrants residing in the U.S., expediting eligibility for Dreamers, individuals with temporary protected status (TPS), and agricultural workers.
• Clear employment-based immigrant visa (“green card”) backlogs, recapture unused visas from prior years, reduce lengthy  wait times for green card issuance, and eliminate per-country visa caps.
• Make  it easier for graduates of U.S. universities with advanced STEM degrees to remain in the U.S.
• Incentivize higher wages for non-immigrant and high skilled workers.
• Provide dependents  of H-1B visa holders with work authorization.
• Establish protections to prevent children from “aging out” of immigration benefits when they reach age 21.
• Create a pilot program to stimulate regional economic development, giving the Department of Homeland Security Authority to adjust green card allocation based on macro-economic conditions.
• Reform family-based immigration by clearing backlogs, recapturing unused visas, eliminating lengthy wait times for green cards, and increasing per-country caps.
• Increase Diversity Visas from 55,000 to 80,000 annually.
• Support asylum seekers and promote immigrant and refugee integration and citizenship.
• Supplement existing border security resources with improved technology and infrastructure.

With only narrow Democratic control in the U.S. Congress, and the competing need to combat  the pandemic and economic crisis, the Administration’s prospects for passing a sweeping immigration bill are  far from certain. Nonetheless it signals a new and more favorable outlook for immigration, and a significant departure from the restrictive policies advanced by the prior administration.

Gibney will closely monitor developments related to these initiatives in the weeks and months ahead and will provide updates as the Biden Administration’s immigration agenda develops and advances. For additional information, please contact your designated Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) today published a final rule modifying the annual H-1B cap selection process to favor high-wage earners.  The rule is set to take effect March 9, 2021, in time for the Fiscal Year (FY) 2022 H-1B cap registration and selection process.  However, implementation may be delayed or deferred, due to the impending change in presidential administrations and potential litigation.

Highlights of the Rule

• The rule replaces the current H-1B cap random selection process with a process that prioritizes selection of  H-1B registrations (or filed petitions, if the registration process is suspended) for individuals earning the highest salaries in their area of employment based on Department of Labor (DOL)  Occupational Employment Statistics (OES) wage levels.
• DOL OES wage  surveys have  four wage levels, ranging from entry level (Level I)  to most senior (Level IV).   USCIS intends to rank registrations on the basis of the highest OES wage level that the offered wage equals or exceeds and select registrations in descending order beginning with registrations for individuals that will be paid at least an OES Level IV wage for the designated  occupation in the area of intended employment.
• If USCIS receives a number of registrations at the highest ranked wage level in excess of the annual H-1B cap, a random lottery will be conducted from the registrations at that wage level only.
• If a registration leverages a private wage survey (instead of the DOL OES wage survey) and the private survey wage (regardless of level) is less than a DOL OES Level I wage, USCIS will categorize the registration as a Level I, the lowest priority for selection.
• If a beneficiary will work at multiple worksites in different geographic areas with varying wage levels, USCIS will rank the registration based on the lowest corresponding OES wage level for the occupation.
• The ranked wage level selection process will be implemented for both the H-1B regular cap and H-1B advanced degree cap selection process, in the order established by the H-1B rule implemented in 2019.
• The rule authorizes USCIS to deny any petition subsequently filed for a selected beneficiary if USCIS determines that a new or amended petition was filed to reduce the wage level of the initial petition filed pursuant to the registration.

In general, the rule will significantly and adversely impact employers wishing to sponsor H-1B petitions for entry level professional positions with corresponding entry level wages, including petitions for recent STEM and non-STEM graduates from U.S. universities, as registrations for these positions are less likely to be selected given their low ranking and the number of registrations each year.  The rule will also adversely impact small businesses that may not be able to offer higher wages. Implementation of the rule will inevitably result in a loss of valuable foreign talent, including scientists, health care professionals, IT workers  and others, as foreign student graduates may be forced to depart the U.S. with this key immigration option eliminated.    Foreign students and the H-1B program have long been targets of the Trump administration, though many of these initiatives  have been struck down by federal courts.

What’s Next?

USCIS is currently modifying its H-1B online registration tool to collect the wage and occupation classification data needed to rank registrations. If the online registration tool is not configured in time for the FY 2022 registration cycle (commencing in March 2021), USCIS could suspend the online cap registration process, and instead require employers to submit fully completed H-1B petitions for selection under the H-1B cap, as was the practice in the years prior to 2020.

However, implementation of the rule by March 2021 is not assured.  The rule is vulnerable to legal challenges in  federal court on both procedural and substantive grounds. Additionally, the incoming Biden administration is expected to review all regulations advanced in the waning days of the Trump administration and place any regulation not yet implemented  on hold.  This may sufficiently delay implementation of this rule so that the FY 2022 cap selection process is not impacted.  Longer term, it is not clear whether the Biden Administration will ultimately  oppose this rule. On the one hand, the Biden campaign’s immigration platform does reference support for general reforms establishing a wage-based visa allocation process. At the same time, the platform recognizes the value of retaining foreign talent, in calling to  expand the number of visas for high-skilled workers and exempt recent graduates of U.S. Ph.D. programs in STEM fields from visa caps.

Gibney is closely monitoring this matter and will provide updates as they develop.

What Should Employers Do Now?

Employers should work with immigration counsel now to identify employees  requiring H-1B sponsorship under the FY 2022 H-1B cap, including gathering data related to position duties, requirements, wages and area(s) of intended employment, for the purpose of assessing eligibility for H-1B classification and preparing to submit registrations.

For additional information, please contact your designated Gibney representative.

Donald Trump extended two directives restricting the admission of certain immigrants  and nonimmigrants to the U.S.  Specifically,  Presidential Proclamation (PP) 10014  restricting the admission of first-time immigrants  and PP 10052 restricting  the admission certain H, J and L temporary workers,  were set to expire on December 31, 2020 but have now been extended to March 31, 2021.  There are exemptions to both of these “visa category”  bans, and both are also the subject of legal challenges.  Despite the extension of the bans until March 31, 2021, President-elect Joseph Biden is expected to review all Trump Administration immigration actions upon taking office on January 20, 2021, and may terminate the bans at any time.

BACKGROUND

The immigrant visa ban/PP 10014 was initially implemented in April 2020 and suspends the entry of select classes of immigrants currently outside the U.S. seeking to enter the U.S. as permanent residents with a new immigrant visa.  Additional information about who is covered and who is exempted from the immigrant visa ban is available here.

The nonimmigrant visa ban/PP 10052 was initially implemented in June 2020 and suspends the admission of certain H, J and L temporary workers. Subsequent to implementation, both the U.S. Department of State and U.S. Customs and Border Protection clarified the scope of the nonimmigrant visa ban, and the Department of State outlined National Interest Exemptions to both bans.  Additionally, in October 2020, a federal district court blocked enforcement of  the nonimmigrant visa ban, finding that the directive exceeded the President’s authority and unlawfully invalidated significant portions of the Immigration and Nationality Act.  The impact of the ruling is currently limited to the plaintiffs who filed suit and the members of their respective organizations.  Plaintiffs include the National Association of Manufacturers, the Chamber of Commerce of the United States, the National Retail Federation, and others.

Notably, the coronavirus-related  “regional travel bans” restricting the admission of travelers from the European Schengen Area, the United Kingdom and Ireland, China, Iran, and Brazil will remain in place until affirmatively terminated by the President. The land border restrictions at the U.S., Canadian and Mexican borders will remain in place until at least January 21, 2021.

More information addressing the immigration impact of COVID-19 and the government’s associated travel restrictions and policies is available on Gibney’s  Immigration Updates and FAQs.