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U.S. Citizenship and Immigration Services has reinstated its pre-2017 policy of presuming the position of computer programmer to be a specialty occupation.
Key Points:
Additional Information: In rescinding the 2017 memo, USCIS cited a Dec. 16, 2020, Ninth Circuit Court of Appeals ruling in which the court overturned USCIS’s denial of an H-1B visa petition, noting that USCIS’s denial followed the logic of the 2017 memo. USCIS said Wednesday it is rescinding the 2017 memo in “order to ensure consistent adjudications across the H-1B program.”
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The Department of Homeland Security (DHS) announced today that it is delaying a Trump administration H-1B wage prioritization rule until the end of the year. The agency posted a pre-publication copy of the final rule today.
BAL Analysis: This announcement confirms that for the upcoming H-1B cap season, U.S. Citizenship and Immigration Services (USCIS) will follow the same process as last year (random selection) to any registration period that takes place before Dec. 31 and employers will not be required to provide a wage level on their H-1B registrations. In the coming days, USCIS will release additional details on the upcoming H-1B cap process, including dates the electronic registration process will open.
President Joe Biden signed an executive order Tuesday that sets a new tone toward immigrants and directs agencies to review existing immigration regulations, guidance and policies to reduce barriers to legal immigration routes, including an immediate review of the public charge rule.
Key Provisions:
For many U.S. immigrants, achieving lawful permanent residence, commonly known as a “green card,” is a momentous milestone and the final step in their immigration journey.
Some employers assume that these employees are exempt from travel and entry restrictions once they have a valid green card. After all, employers no longer need to file extension petitions or renew visa stamps for these employees. The false perception that green-card holders enjoy unrestricted entry into the U.S. may also have been reinforced by the fact that green-card holders are exempt from many of the recent COVID-19 travel bans.
However, as we near the one-year mark since COVID-19 shuttered borders around the world, employers should revisit the often-forgotten restrictions on green-card holders who remain outside the U.S. for over one year.
Generally, when green-card holders enter the U.S., an immigration officer will determine their intent to reside in the U.S. and confirm the validity of their green card and reentry permit. Green-card holders can document their intent to reside in the U.S. through evidence of close ties in the U.S., such as maintaining a principal U.S. residence, paying taxes, holding a job in the U.S., having bank accounts or owning property in the U.S. Additionally, immigration officers will consider both the length and frequency of trips as factors in deciding if the employee intends to reside in the U.S.
Trips lasting less than a year. Some green-card holders assume that frequent trips abroad for less than six months do not present any red flags. This is not accurate. Immigration officers have the authority and discretion to question a green-card holder’s intent, regardless of the length or frequency of a trip. Additionally, green-card holders will likely experience more scrutiny at the port of entry when the length of the trip is over six months. Although COVID-19 may provide a reasonable explanation for lengthy trips, green-card holders should be prepared for additional questions upon return. All green-card holders must present their unexpired green cards as a valid entry document.
Trips lasting more than one year. Employers and employees should focus on longer absences as the pandemic enters its second year. Green-card holders who leave the U.S. for longer than one year face detrimental consequences: Not only are they presumed to have abandoned their permanent-residence status, the green card becomes invalid for reentry into the U.S. In this scenario, they must apply for and obtain a “returning resident” (SB-1) immigrant visa at the U.S. embassy or consulate, showing that they departed the U.S. with the intent to return and that the extended stay abroad was for reasons beyond their control.
While green-card holders may technically travel directly to the U.S. without applying for a returning-resident visa, this approach is much riskier because the decision to admit the employee is left to the discretion of the immigration officer at the port of entry, both to waive the requirement that the employee show valid documents and to confirm that he or she did not intend to abandon permanent residence status.
Generally, the longer the trip, the more challenging the reentry. If feasible, obtaining a reentry permit before departing the U.S. can help prevent issues. For employees who have been stranded abroad during COVID-19, employers should review entry restrictions for green-card holders and take steps now to avoid unnecessary obstacles for returning employees and to ease their transition back to the U.S.
This article was originally published in the Washington Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The U.S. Senate voted 57-43 Tuesday to confirm Alejandro Mayorkas, President Joe Biden’s pick to head the Department of Homeland Security (DHS).
Mayorkas, 61, is the first immigrant and first Latino to lead the agency. Born in Cuba, he came to the U.S. when his parents fled the Cuban Revolution in 1960. He grew up in Southern California, earning his undergraduate degree from University of California, Berkeley, and his law degree from Loyola Law School in Los Angeles.
Mayorkas served as the director of U.S. Citizenship and Immigration Services (USCIS) and as deputy secretary of DHS in the Obama administration. As USCIS director, he developed the Deferred Action for Childhood Arrivals (DACA) program. As deputy DHS secretary, Mayorkas oversaw the agency’s response to the Zika and Ebola outbreaks. He also implemented the first memorandum of understanding between the U.S. and Cuba. In addition to agency experience, he practiced law as a federal prosecutor in the Clinton administration and as a partner with WilmerHale in Washington, D.C., since 2016.
BAL Analysis: BAL is closely following the Biden administration’s immigration actions and will update clients as new initiatives are expected to be released in coming days.
Immigration and Customs Enforcement (ICE) announced today it has extended Form I-9 flexible procedures for employers operating remotely due to COVID-19 for an additional 60 days.
Background: The temporary measures were introduced on March 20, 2020, and have repeatedly been extended since.
U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program announced Tuesday that it will not be creating a new Optional Practical Training (OPT) Employment Compliance Unit as previously announced less than two weeks ago.
Additional Information: Employers and schools should nevertheless continue to make sure they are in compliance with rules and obligations under Optional Practical Training, Curricular Practical Training and the STEM-OPT extension programs.
The U.S. Supreme Court has agreed to hear a case involving Temporary Protected Status (TPS) holders’ eligibility for lawful permanent residence.
Additional Information: The case is Sanchez v. Wolf, No. 20-315, U.S. Supreme Court.
BAL Analysis: BAL is following developments in the case, including how the Department of Homeland Security will defend it in the Biden administration. BAL will provide updates on significant developments as the case progresses.
A message issued by the Student and Exchange Visitor Information System (SEVIS) on Jan. 4 reminded educational institutions of their compliance obligations regarding foreign students participating in Optional Practical Training (OPT). The message also warned that “a significant number of SEVIS records have not been properly maintained,” leading to recent enforcement actions.
Additional Information: The notice is another indication that Immigration and Customs Enforcement (ICE) is focused on enforcement of OPT programs. The agency announced on Jan. 15 it is creating a full-time OPT Employment Compliance Unit dedicated to monitoring and investigating employer and student compliance with OPT programs.
BAL Analysis: DSOs should ensure that they are in compliance with record-keeping and SEVIS update requirements for all students participating in OPT programs.
President Joe Biden issued a proclamation Monday reinstating restrictions on travel from most European countries and Brazil and imposing new restrictions on travel from South Africa. The U.S. is also poised to implement a new COVID-19 testing requirement on international air travelers.
Additional Information: The Trump administration moved to lift the “physical presence” bans on Brazil, Ireland, the United Kingdom and the Schengen Area days before President Trump left office. Biden’s incoming White House spokesperson immediately indicated the new administration would not lift the bans. Today’s proclamation formally extends the restrictions. In addition to the countries listed above, physical presence bans remain in place for China and Iran. U.S. citizens, lawful permanent residents, spouses and children of U.S. citizens and a limited number of others are exempt from the bans. The bans will remain in place until the White House lifts them.