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The Department of Homeland Security will extend the bans on nonessential land travel across the U.S. borders with Canada and Mexico, according to Federal Register notices set to be published on Monday, Aug. 23.
Key Points:
Additional Information: The U.S.’s bans on nonessential travel across land borders from Canada and Mexico have been in place since March 2020 and subsequently extended for 30-day periods since then.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
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The U.S. Chamber of Commerce recently filed a brief in its litigation challenging the Department of Homeland Security’s (DHS’) H-1B lottery prioritization rule, calling the rule “unlawful three times over.”
The rule, announced in October 2020, would do away with the random H-1B lottery and use a system that prioritizes individuals with the highest offered salaries. The U.S. Chamber of Commerce, National Association of Manufacturers, Presidents’ Alliance on Higher Education and Immigration and other plaintiffs argued in their recent brief, however, the rule is unlawful because:
“The government cannot resuscitate this fatally flawed and ill-advised rulemaking,” the brief said. “The Court should thus set aside the Lottery Rule.”
The litigation has a complicated procedural history. In December 2020, the judge overseeing the case set aside the Department of Labor’s prevailing wage regulation and the DHS “H-1B strengthening” rule. In June, the court vacated the updated version of the DOL wage rule, which was also challenged in the case. The judge allowed the claims related to the lottery rule to continue.
The lawsuit drew the backing of some of the country’s largest companies, 46 of whom signed an amicus brief last year in support of the litigation.
“The H-1B visa program provides tremendous benefits to the U.S. economy and U.S. workers,” the amicus brief said. “Numerous economic studies demonstrate that the presence in the United States of these high-skilled employees fuels innovation, increases productivity and the size of the U.S. economy, and—most important—creates additional jobs and higher wages for U.S. workers.”
Additional information on the lawsuit, Chamber of Commerce v. U.S. Department of Homeland Security, is available here.
BAL Analysis: The H-1B lottery prioritization rule would have a dramatic effect on the way H-1B visas are allocated, but it remains subject to litigation. A hearing will take place in September, and the plaintiffs have urged the court to rule quickly to provide clarity to companies on what rules will be in place next cap season. BAL will continue to follow the litigation and will update clients as information becomes available.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
A federal court has ordered the State Department to issue an additional 9,095 immigrant visas to winners of the 2020 Diversity Visa Lottery.
Additional Information: The ruling requires the Department to process diversity visas randomly until the reserved 9,095 visas have been issued; however, the court left it to the parties to negotiate a reasonable timeframe within which the Department must issue the reserved visas.
Priority-date cutoffs will advance in most key employment-based categories next month, according to the State Department’s September Visa Bulletin. U.S. Citizenship and Immigration Services (USCIS) confirmed that the Final Action Dates chart will control filing eligibility.
Key movements in Final Action Dates in September:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: September will mark the ninth time this fiscal year that USCIS will use Final Action Dates for employment-based adjustment-of-status applications. Family-based applicants may use the applicable Dates for Filing chart, except for F2A category applicants, who may use Final Action Dates.
U.S. Citizenship and Immigration Services (USCIS) announced Thursday that it would temporarily extend the validity period of required medical exams for Green Card applicants.
Background: USCIS cited the COVID-19 pandemic and related delays in announcing the extension. Previously, a completed Form I-693 remained valid for two years from the date of the signature from a USCIS-authorized physician (also known as a “civil surgeon”), provided the date of the signature was no more than 60 days before the applicant filed for adjustment of status.
Additional Information: USCIS requested in its announcement that those applying for adjustment of status to lawful permanent residence (i.e., applying for a Green Card) file Form I-693, Report of Medical Examination and Vaccination Record, together with Form I-485, Application to Register Permanent Residence or Adjust Status. The agency said this may eliminate the need to issue a Request for Evidence (RFE) and would help alleviate delays. More information on the extension is available here.
This alert has been provided by BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
A proposed rule that would “preserve and fortify” Deferred Action for Childhood Arrivals (DACA) is under final White House review. The text of the rule is not yet available.
Additional Information: In January, President Joe Biden issued a memorandum ordering DHS to take steps to protect DACA. Following this directive, Secretary of Homeland Security Alejandro N. Mayorkas announced that DHS would propose a regulation to preserve and fortify DACA. Secretary Mayorkas reaffirmed that while this action would be an important step in protecting the 640,000 people brought to the U.S. as children, Congress still needed to pass legislation to give Dreamers full protection and a path to citizenship. Since then, over 100 employers and trade associations have called on Congress to protect DACA, stating that “their work and commitment to our companies, their families and communities are critical to our nation’s strength, especially since there are tens of thousands of DACA recipients working as frontline doctors and nurses and in other critical industries fighting COVID-19.”
BAL Analysis: The rule is likely to take at least a few months to become a final rule, and expected legal challenges could further delay implementation. At this time, DHS continues to adjudicate only renewal applications for existing DACA recipients. BAL continues to monitor legislative, regulatory and judicial developments related to DACA, and will continue to provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.
U.S. Citizenship and Immigration Services (USCIS) announced today that permanent resident applicants may now apply for a Social Security number (SSN) or replacement card as part of the green-card application process.
Additional Information: USCIS Director Ur Jaddou, who was recently confirmed, stated that the agency’s decision to expand its partnership with the Social Security Administration intends to eliminate unnecessary bureaucracy and help make the immigration system more efficient.
BAL Analysis: This is a welcome change that will eliminate the additional step of applicants having to apply separately with the SSA for a social security number, which confers proof of a noncitizen’s eligibility for employment, social security benefits and other government services. BAL will continue to monitor these developments and will provide updates as they become available.
The U.S. State Department published a proposed rule today that would give qualified applicants the option of renewing their U.S. passports online.
Additional Information: Currently, U.S. passport renewal applicants typically use the mail-in process, requiring applications to be initially processed through a lockbox and then sent to a passport agency or center for further processing. The proposed rule seeks to provide more flexibility for the renewal applicant; eliminate the physical application and lockbox processing times; and increase data quality, protection and traceability.
BAL Analysis: The rule should help streamline the renewal process for eligible U.S. passport holders. The State Department indicated that after the public comment period closes, it intends to publish the final rule “as expeditiously as possible.” Passport applicants are reminded that the Department is still seeing extended processing delays and should apply at least six months before planned travel. BAL will continue to monitor these developments and will provide updates as they become available.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of July 31, the department was adjudicating applications filed in March and earlier, conducting audit reviews on applications filed in September and earlier, and reviewing appeals for reconsideration filed in April and earlier.
Average PERM processing times:
PWD Processing: As of July 31, the National Prevailing Wage Center was processing PWD requests filed in March and earlier for H-1B and January and earlier for PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed June and earlier for H-1B and PERM cases. Center director reviews were being conducted for PERM cases filed in July and earlier.
Average times for issuance of PWDs:
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in March and earlier and is starting to see PWDs for requests filed in March and earlier for H-1B cases and January and earlier for PERM cases.
The White House announced last week that it does not have immediate plans to lift regional COVID-19 travel restrictions in the near future due to the COVID-19 Delta variant.
BAL Analysis: Travelers are reminded that U.S. travel restrictions remain in place at this time. BAL continues to closely monitor developments. Individuals with immediate travel needs should consult their BAL professional on best available travel options. Applicants should continue to expect delays in processing, as consulates are still operating at reduced capacity. To learn more about consular delays, travel bans and the October Visa Bulletin, click here to register for BAL’s client-only webinar on Aug. 12.