U.S. Citizenship and Immigration Services confirmed Friday that the “H-1B strengthening” rule will not take effect today as scheduled, in compliance with a court order last week setting the rule aside.

Key Points:

  • The interim final rule was scheduled to take effect today and would have tightened the H-1B definitions of “specialty occupation” and “employer-employee relationship” and required more evidence for third-party placement of H-1B workers at client sites.
  • On Dec. 1, U.S. District Judge Jeffrey White setting aside the rule, preventing the agency from implementing it as scheduled.

Background: USCIS published the interim final rule on Oct. 8 with an effective date of Dec. 7. The agency accepted comments from the public until Dec. 7, but in issuing an interim final rule, argued that it did not need to consider the comments before putting the rule into effect. The court found that the government did not provide a strong enough reason to issue the rule without the normal notice-and-comment period required by the Administrative Procedure Act.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

Following two court rulings this week blocking enforcement of a wage regulation that significantly increased H-1B and PERM wage thresholds, the Department of Labor (DOL) has responded regarding how it will comply with the court orders.

Key Points:

  • The department will comply with the court orders by reverting to the Occupational Employment Statistics (OES) prevailing wage data that was in effect before the regulation took effect on Oct. 8.
  • In order to make the necessary system updates to revert to the old the wage data, employers should anticipate delays in the coming days in filing new Labor Condition Applications that rely on OES survey data. Beginning Dec. 9, the Foreign Labor Application Gateway (FLAG) system will accept LCAs using OES survey data that was in effect on Oct. 7.
  • Employers may continue to file prevailing wage determinations, but processing of the requests has been suspended until Dec. 15. When processing resumes, the department will comply with the court orders by using OES survey data in effect Oct. 7 for determinations relying on OES data as their source.

Background: The agency issued the wage regulation on Oct. 8 as an “interim final rule” that took effect immediately without giving the public notice of the rule or an opportunity to comment before the rule became effective. The regulation dramatically increased wage minimums for permanent labor certifications (PERM) and H-1B, H-1B1 and E-3 “specialty occupation” categories. Federal judges in California and New Jersey ruled this week in favor of plaintiffs who argued that the government lacked good cause for skipping normal rulemaking procedures in violation of the Administrative Procedure Act. The judge in New Jersey issued a limited injunction to prevent the department from enforcing the rule against the plaintiffs in the case, but the judge in California ruled that the regulation must be set aside, barring the government from enforcing it nationwide.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

 

 

The U.S. Senate passed a bill Wednesday that would remove the 7% per-country caps on employment-based green cards. The Fairness for High-Skilled Immigrants Act, S.386/H.R.1044, passed by unanimous consent.

Key Points:

  • This is the Senate version of the bill that passed the House in July 2019 with bipartisan support by a vote of 365-65.
  • There are differences between the Senate and House versions that must be resolved before the bill can be sent to the president for signature.
  • Amendments to the Senate version include a provision that limits the percentage of green cards that may be issued to H-1B and H-4 visa holders. The bill also contains H-1B enforcement and oversight provisions.

BAL Analysis: The Senate’s passage of the bill is an encouraging step toward providing relief to individuals stuck in the green card backlog. Multiple changes have been made to the bill since it passed the House, however, and the chambers must reconcile those differences before the bill goes to the president. It is not yet clear whether President Trump would sign the bill into law, as the White House has previously expressed opposition to the concept of removing per-country caps and anti-immigration groups are publicly opposing the bill.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

 

For the second time this week, a federal judge ruled against the Trump administration in a case challenging a Department of Labor (DOL) rule that amended wage requirements for the H-1B, H-1B1 and E-3 visa categories and for permanent labor certifications (PERM). The court issued a limited injunction, ordering DOL to stop enforcing the rule against the plaintiffs in the case.

Key Points:

  • In his ruling Thursday, U.S. District Judge Stanley Chesler found that the parties suing the government met all of the requirements for an injunction, including showing a likelihood that they would succeed on the merits on their claim that the administration did not follow proper procedures in issuing the rule.
  • Earlier this week, District Judge Jeffrey White ruled to set aside both the DOL rule and a Department of Homeland Security (DHS) rule amending H-1B eligibility criteria.
  • The injunction in Thursday’s ruling was limited to DOL’s enforcement of the rule against the plaintiffs in the case. Under Tuesday’s ruling, however, the regulations were set aside and the government is prevented from enforcing both the DOL and DHS rules nationwide.

BAL Analysis: BAL continues to review this week’s rulings and to monitor DOL and DHS for guidance in response to this week’s rulings. A third lawsuit challenging the DOL rule remains pending in federal court in Washington, DC. BAL will provide more information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com

A federal judge ruled Tuesday to set aside Trump administration regulations amending H-1B eligibility criteria and changing wage requirements for the H-1B, H-1B1 and E-3 visa categories and for permanent labor certifications (PERM).

Key Points:

  • District Judge Jeffrey White ruled that the administration had not provided a strong enough reason to issue the rules in October without the normal notice and comment period required by the Administrative Procedure Act (APA).
  • As a result of the decision, the Department of Labor (DOL) may no longer enforce its wage rule and the Department of Homeland Security (DHS) may not begin implementing the new “specialty occupation” rule as scheduled on Dec. 7.
  • The agencies have not yet issued guidance in response to the ruling. The government is likely to appeal.

Background: Both the DHS and DOL rules were published Oct. 8, with the government invoking the APA’s “good cause exception” to waive the normal notice and comment period and, in the case of the DOL rule, to implement the regulation immediately. Business organizations, universities and immigration groups filed lawsuits in October challenging both rules. Judge White ruled on Tuesday that the regulations must be set aside.

DHS also proposed in November to replace the H-1B lottery with a new wage-based allocation process, and will accept comments until Dec. 2. Though today’s ruling does not affect that proposal, it is also expected to be challenged in court.

BAL Analysis: The ruling is a victory for the organizations that sued to stop the government from implementing and enforcing the DHS and DOL rules. BAL continues to review the ruling and will provide additional information as necessary.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

A federal judge in the district court for the District of Columbia concluded Monday that the Department of Homeland Security (DHS) has legal authority to allow foreign students to work in the U.S. after graduation under Optional Practical Training (OPT).

Key Points:

  • The judge granted summary judgment to DHS and the parties that intervened in the lawsuit in support of OPT, the National Association of Manufacturers, U.S. Chamber of Commerce, and Information Technology Industry Council.
  • This means the judge has validated the government’s authority to allow OPT, and has rejected the plaintiffs’ challenges to the program, without a full trial.
  • The judge cancelled the status conference that had been scheduled for Dec. 1 and will issue a memorandum opinion and final order confirming these conclusions, “absent extraordinary circumstances,” in the next 60 days.
  • The Washington Alliance of Technology Workers (“WashTech”) first filed suit challenging the government’s authority to allow OPT in 2014 and litigation has been ongoing since then.

BAL Analysis: This is a significant victory, as it upholds the validity of the OPT program and the STEM extension. Current rules governing these programs remain in place. The judge is expected to issue a final ruling explaining his reasoning in the next 60 days. WashTech will likely appeal the ruling. BAL will continue to provide updates on important developments relating to OPT.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

U.S. Citizenship and Immigration Services (USCIS) has extended temporary measures that were set to expire Dec. 1, allowing employers to accept proof that certain employees have approved Employment Authorization Document (EAD) applications, instead of the EAD itself, for purposes of verifying I-9 employment eligibility.

Key Points:

  • Through Feb. 1, 2021, employers may continue to accept EAD approval notices (Form I-797) that contain a notice date between Dec. 1, 2019, and Aug. 20, 2020, inclusive, for purposes of I-9 employment eligibility verification. New hires who present this document as proof of employment authorization must also present an acceptable List B identity document.
  • Employers who previously accepted an approval notice and entered Dec. 1, 2020, as an expiration date must update their I-9 forms to show the employee’s continued work authorization by writing “Employment Authorization Ext until 02/01/2021” in the Additional Information box in section 2 of the form.
  • By Feb. 1, employers must reverify employees who presented an EAD approval notice by having them present either their new EAD or another acceptable document from either List A or C on the Form I-9.

Background: The temporary measures, announced in August, are meant to address severe delays in processing and issuing EADs. In June, USCIS announced slowdowns in printing of EADs after it ended a contract with the company that printed the cards. In July, the USCIS Ombudsman confirmed that the processing and issuance of EADs and green cards was at reduced capacity because of a hiring freeze and ongoing budget issues.

BAL Analysis: The extension of the temporary measures allows employees affected by the delays in EAD issuance to begin work sooner rather than waiting to receive the actual EAD, if they received the required notification that their EAD application was approved between Dec. 1, 2019, and Aug. 20, 2020. Employers who have accepted an approval notice under the temporary measures are reminded to follow procedures required by USCIS to reverify the employee’s continued work authorization.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

With holiday travel season approaching, many foreign national employees will be hoping to visit family abroad, vacation overseas and perhaps renew their visas at the same time. This year, employers and employees will need to take additional precautions and weigh new considerations before planning holiday travel.

Key travel considerations:

  • Travel bans. Multiple travel bans on entry (and re-entry) to the United States remain in effect. Among them, two respective bans suspend entry of immigrant visa applicants and certain nonimmigrant visa categories (H-1, L-1, and J-1). Though they are due to expire Dec. 31, President Trump may extend them into 2021 before he leaves office. Exemptions may be available for those able to demonstrate they are entering the U.S. for reasons serving the national interest. Foreign nationals who believe they may qualify for an exemption should consult their BAL attorney.
  • Physical presence bans. Additional presidential proclamations ban the entry (including re-entry) of most foreign nationals who have been physically present in, including transiting through, countries designated as high-risk COVID-19 countries within the previous 14 days. The designated countries currently include Brazil, China, Iran, Ireland, the United Kingdom, and any of the 26 countries in Europe’s Schengen Area. Travelers should note that countries may be added to the list at any time and on short notice. The physical presence bans have no expiration date, and may only be terminated by the president. Exemptions may be available for those able to demonstrate they are entering the U.S. for reasons serving the national interest. Those who believe they may qualify for an exemption should consult their BAL attorney.
  • U.S./Canada/Mexico land borders. The three countries have reciprocally agreed to the continued suspension of “non-essential” travel at land borders until at least Dec. 21.
  • U.S. consulates. U.S. consulates around the world have begun a phased reopening, but many have not resumed routine visa processing and are only taking emergency appointments. Others have warned of lengthy delays for visa services that have resumed. Travelers should consult the appropriate consulate’s website for the most up-to-date information, and should anticipate longer timelines even after visa processing resumes, as U.S. consulates will face significant backlogs that developed during the months-long consulate closures.
  • COVID-19 procedures. Many countries have imposed additional COVID-19 procedures, such as proof of a negative PCR test before entry, screening upon arrival, health insurance coverage and mandatory quarantine protocols. Travelers should be aware of their destination country’s requirements and factor additional time and procedures into their travel plans.

BAL Analysis: Employers and employees should consult with their BAL professional for individual assessments before planning any international travel and carefully weigh risks of traveling. BAL is presenting a webinar on Dec. 3 that will explore travel risks and considerations for the holiday season. Register for the event “Planning for End-of-Year Travel and Expiration of Travel Bans,” here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

The U.S. State Department unveiled plans Monday for a six-month “visa bond” pilot program whereby consular officials would require a limited number of B-1/B-2 visa applicants to post a bond of $5,000, $10,000 or $15,000 in order to travel to the United States.

Key Points:

  • A temporary final rule on the visa bond program is expected to be published in the Federal Register tomorrow, Nov. 24. Under the plan, the program would take effect Dec. 24 and would remain in place for six months through June 24, 2021.
  • The program would require the payment of a bond by a small number of travelers, specifically nationals of 23 countries with historically high overstay rates who are applying for B-1/B-2 visas, and require a waiver of visa ineligibility. The 23 countries whose nationals are covered in the rule are Afghanistan, Angola, Bhutan, Burkina Faso, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo, Djibouti, Eritrea, the Gambia, Guinea Bissau, Iran, Laos, Liberia, Libya, Mauritania, Myanmar, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen.
  • Bonds will not be required for visa applicants from countries not listed in the rule or from those traveling through the visa-waiver program. The bond can also be waived by the Department of State.
  • An unpublished version of the rule is available here.

BAL Analysis: The State Department rule says the pilot program is designed to “assess the operational feasibility of posting, processing, and discharging visa bonds” and “to help assess the burden on government agencies and identify any practical challenges related to visa bonds.” The agency deliberately chose a small group in order to test the feasibility of using visa bonds. For that reason, the impact will likely be minimal. It is likely that the next administration will not be interested in pursuing this initiative, and the new administration could effectively decline to implement the rule by waiving all bond applications. BAL will continue to follow the implementation of the rule and will provide clients with updates as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

 

U.S. Citizenship and Immigration Services has announced that in December it will follow the State Department’s Dates for Filing chart, as published in the December Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.

The Visa Bulletin, which was published earlier today, showed modest forward movement in China EB-1 and India EB- 1, but retrogression of one year in India EB-3. All other priority-date cutoffs will be the same as they were in the November Visa Bulletin.

Dates for Filing for Employment-Based Preference Cases in December:

Preference All Other Countries China El Salvador Guatemala Honduras India Mexico Philippines Vietnam
EB-1 Current Nov. 1, 2020 Current Nov. 1 2020 Current Current Current
EB-2 Current Oct. 1, 2016 Current May 15 2011 Current Current Current
EB-3 Current June 1, 2018 Current Jan. 1, 2014 Current Current Current

USCIS will also use Dates for Filing for family-based applicants, except for F2A category applicants, who may use Final Action Dates.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.