Tag: Immigration

The Biden administration issued an Executive Order Promoting COVID-19 Safety in Domestic and International Travel requiring that masks be worn in airports or on commercial aircraft, trains, maritime vessels, intercity bus services and other forms of public transportation  within the U.S. consistent with CDC guidelines.  Agency heads are also directed to present recommendations for additional public health measures for domestic travel in the weeks ahead.

Additionally, the order provides that travelers entering the U.S. from abroad should be required to present proof of a negative COVID-19 test prior to traveling to the U.S. and to comply with applicable CDC guidelines pertaining to self-quarantine after entry to the U.S.  In this respect,  the Department of Health and Human Services and the Department of Homeland Security will consider further the timing, types and proof  of COVID-19 tests required to satisfy the CDC order of January 12, 2021 mandating a negative COVID-19 test result for international travelers. The agencies are also required to submit plans to support self-quarantine requirements.

The U.S. will also make outreach to the governments of Canada and Mexico in order to establish health protocols for land ports of entry within 14 days. Similar measures will be considered with respect to public health measures for arrivals at sea ports.  Finally, the order directs the Secretaries of State, Homeland Security, and Health and Human Services to assess the feasibility of linking COVID-19 vaccinations to International Certificates of Vaccination Prophylaxis (ICVP) and producing electronic versions of same.

For additional information about COVID-related travel restrictions and requirements, 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.

The U.S. Centers for Disease Control  and Prevention (CDC) issued an order requiring all passengers traveling to the U.S. on international flights to show written proof of a negative Covid-19 test  or documentation of recovery from Covid-19 after a prior positive test result prior to boarding flights to the U.S. The order is effective January 26, 2021.  Passengers must obtain the Covid-19 test within three days of traveling to the U.S. Additional information concerning testing, timing, and proof of recovery is available here.

The rule applies to all passengers, including U.S. citizens and U.S. lawful permanent residents, regardless of whether vaccinated. Air carriers have been instructed to deny boarding to any passenger who does not present written proof (paper or electronic) of a negative test result or recovery from the virus.

Note that proof of a negative test result does not exempt travelers from the regional and visa category bans currently in place pursuant to various Presidential proclamations. The bans prohibiting the admission of travelers from the European Schengen Area, the United Kingdom and Ireland, China, Iran, and Brazil  remain in place with some exemptions. Individuals who are exempted from these bans and individuals who have been granted National Interest Exceptions to travel to the U.S. must still provide proof of the negative Covid-19 test result in order to travel to the U.S. as of January 26, 2021, consistent with the CDC order.   Individuals who are otherwise subject to the regional and visa category bans remain restricted, and cannot travel to the U.S. even with a negative Covid-19 test result.

For additional information concerning travel restrictions to the U.S., 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.

UPDATE DECEMBER 31, 2020–  The U.S. Department of Homeland Security again extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restrictions will remain in place through January 21, 2020 and will likely be extended further. The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.  Information concerning the scope of the travel restrictions and exemptions is available here.

The Department of State released the  January 2021 Visa Bulletin. In a departure from the last three months, USCIS has indicated that employment-based adjustment of status applicants must follow the Final Action Dates  chart.    Chinese and Indian nationals face more severe retrogression under Final Action Dates than under the Dates for Filing charts used from October through December.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY  FOR JANUARY FINAL ACTION DATES

EB-1, First Preference Category

• Worldwide (including El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam) is current in January.
• China and India: The cut-off date is September 1, 2019.

EB-2, Second Preference Category

• Worldwide remains current in January.
• China: The cut-off date is June 1, 2016.
• India:  The cut-off date is October 8, 2009.

EB-3, Third Preference Category

• Worldwide, including  EB-3 Worldwide Other Workers, remains current in January.
• EB-3 China’s cut-off date is December 15, 2017 and the cut-off date for EB-3 China Other Workers is March 1, 2009.
• EB-3 India and EB-3 India Other Workers’ cut-off date is March 22, 2010.

Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS DO NEXT?  

Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in January pursuant to the Final Action Dates chart. Additionally, it will be particularly important to file adjustment of status applications in December for Chinese and Indian nationals who qualify to file under the December 2020 Visa Bulletin Dates for Filing Chart and who will lose eligibility to file under the January 2021 Final Action Dates.

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

A federal judge in California struck down two Trump administration rules that substantially altered the H-1B visa program for temporary professional workers and  increased wage obligations for businesses employing certain temporary workers.

The Department of Labor (DOL) rule  took effect October 8, 2020, and imposed significantly  higher wage requirements on businesses that employ H-1B, H-1B1 and E-3 workers, and businesses that file PERM labor certifications for foreign workers as part of permanent resident sponsorship.

The Department of Homeland Security (DHS) rule narrowed the definition of a specialty occupation to limit who qualifies for the visa, imposed restrictions on employers that place H-1B workers at end-client sites, and expanded USCIS site visit authority.  The  DHS rule was set to take effect on December 7, 2020.  Additional information about the rules is available here.|

In striking down the rules, the court found that the Trump administration violated the Administrative Procedures Act (APA) by implementing the rules without following the APA’s public notice and comment procedures.  The court rejected the administration’s argument that the impact of  COVID-19  on domestic unemployment justified  fast-tracking  the rules, observing that the administration had been considering the rules since 2017.

What’s Next?

The court’s summary judgment order invalidating the rules  is effective immediately.  However, the administration may seek to expedite an appeal of the decision, leaving employers in some suspense as to the ultimate outcome.

It is not yet known how the ruling will impact prevailing wage determinations issued by DOL while its rule was in effect, nor whether DOL will immediately revert to the prevailing wage data utilized prior to issuance of the rule, now that the rule is invalidated.  Gibney is closely monitoring the matter and working with employers to strategize cases in light of the decision.

The case is Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California.

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