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The Department of Homeland Security has announced it will extend COVID-19 restrictions on nonessential travel across the U.S.’s land borders with Canada and Mexico.
Key Points:
Additional Information: The nonessential travel bans were imposed March 20, initially for 30 days, and have since been extended in 30-day increments.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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Priority-date cutoffs will advance modestly in most key employment-based categories, but the Dates for Filing cutoff for India EB-3 will retrogress by one year, according to the State Department’s December Visa Bulletin.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Dates for Filing: Key Movements
Dates for Filing for Employment-Based Preference Cases:
U.S. Citizenship and Immigration Services will announce soon via a web posting whether it will use the Final Action Dates or Dates for Filing chart. BAL will update clients once officials confirm whether the chart can be used.
U.S. Immigration and Customs Enforcement has extended certain flexible Form I-9 procedures for employers operating remotely because of the COVID-19 national emergency.
Background: ICE introduced the temporary measures on March 20 and has extended them a number of times since then. The measures had been set to expire this week, but have now been extended through the end of the year. BAL will update clients if an additional extension is announced.
U.S. Customs and Border Protection (CBP) is expected to propose a rule tomorrow that would expand the collection of biometrics upon arrival and departure at all ports of entry. The agency posted an unpublished version of the proposed rule today.
Background: Currently, the agency implements a biometrics program upon entry, but has implemented only a pilot program for departure that covers certain foreign nationals exiting at land ports and 15 seaports and airports.
BAL Analysis: The proposed rule indicates the agency’s priority in implementing a comprehensive entry and exit biometrics requirement. The rule is in the proposal stage. It would not take effect until after the conclusion of the 30-day comment period (around Dec. 19) and after the agency has reviewed all comments and issued a final rule with an implementation date. The final version of the rule may differ from the proposed version.
A federal judge ruled Saturday that Chad Wolf, the acting secretary of the Department of Homeland Security, was unlawfully serving in his position when he issued a memorandum in July limiting the Deferred Action for Childhood Arrivals (DACA) program. The parties to the litigation will discuss next steps at a conference this week.
BAL Analysis: The ruling does not immediately change the DACA program and, pending another ruling or additional guidance from DHS, the government will continue to accept DACA renewal applications, but not new enrollees. It will also limit renewal grants and work authorization to one-year periods. BAL continues to follow the litigation and will provide clients with important information as it becomes 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 Oct. 31, the department was adjudicating applications filed in May and earlier, conducting audit reviews on applications filed in December and earlier, and reviewing appeals for reconsideration filed in July and earlier.
Average PERM processing times in October:
PWD Processing: As of Oct. 31, the National Prevailing Wage Center was processing PWD requests filed in June and earlier for H-1B and PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed in October and earlier for H-1B and PERM cases. Center director reviews were being conducted on PERM cases filed in September and earlier. There were no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in October:
Additional Information: The Labor Department reports PERM and PWD processing time frames on its Foreign Labor Application Gateway website.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for non-audited PERM applications filed in May and earlier, and is seeing PWDs for requests filed in June and earlier for H-1B and PERM cases.
One day after a federal court in Illinois struck down the Department of Homeland Security’s public charge rule in its entirety, an appeals court has paused that order, allowing DHS to continue enforcing the contested rule for now.
Key points:
Background: Since the public charge rule was finalized last year, it has been subject to multiple legal challenges and its implementation has been stopped and started again by numerous court orders. USCIS implemented the rule on Feb. 24, 2020, after the Supreme Court paused temporary nationwide injunctions that blocked the rule. In the current case, however, the lower court issued not a temporary injunction but a final order vacating the rule as unlawful. The appellate ruling has put the lower court final order on hold.
BAL Analysis: For now, the public charge rule continues to be implemented and applicants should continue to work with their BAL professional to provide the forms and documentation related to the rule. This lawsuit does not affect the State Department’s version of the rule that applies to visa applicants outside the U.S. and that remains on hold by a separate court order.
Today’s presidential election will help determine which path the U.S. immigration system takes during the economic recovery and for the foreseeable future.
In the past four years, the Trump administration has dramatically reshaped business immigration by introducing executive actions and changes at the administrative level that have curtailed virtually every route for high-skilled foreign workers. Former Vice President Joe Biden, meanwhile, has said his administration would restore the priorities that existed before Trump and that he would work reform H-1B allocation, family-based immigration and employment-based green cards.
What should U.S. companies expect in the next four years? What additional changes to high-skilled immigration would a second Trump term bring? What does Joe Biden’s immigration agenda promise in the first 100 days and beyond? BAL released a white paper that covers all of this information and more. The white paper, Immigration & the U.S. Presidential Election, is available here.
A federal court in Illinois vacated the public charge rule nationwide in a decision today that orders the Department of Homeland Security to stop enforcing the rule immediately.
Background: The public charge rule took effect Feb. 24, 2020, but has been put on hold several times because of multiple lawsuits. Today’s court decision comes in an ongoing lawsuit that has ping-ponged through the appeals courts. The same court previously blocked the public charge rule from taking effect in Illinois, and that decision was affirmed by the Seventh Circuit Court of Appeals. On remand, the court has now decided that because the appeals court held that the public charge rule was substantively and procedurally invalid under the Administrative Procedure Act, the rule must be set aside in its entirety.
In two other lawsuits, the Ninth Circuit and Second Circuit Courts of Appeals stayed lower courts’ preliminary injunctions of the public charge rule, ruling that the Trump administration was likely to prevail on the merits. The divergence in appellate court rulings sets up the potential for the U.S. Supreme Court to hear the case.
BAL Analysis: DHS has not yet issued guidance in response to today’s court decision, but is expected to respond soon. This decision was a summary judgment – a final ruling by the court (as opposed to a temporary restraining order or a preliminary injunction) – and therefore will remain in effect unless stayed or reversed by a higher court. BAL is closely following the multiple lawsuits challenging the public charge rule and will update clients as information becomes available.
The reregistration period opened today for South Sudan Temporary Protected Status (TPS) holders to reregister to maintain their status.
Background: The Department of Homeland Security previously announced the extension of the South Sudan TPS designation on its website. Today’s Federal Register publication formally announces the extension and details of the registration. The country was originally designated for TPS on Nov. 3, 2011, because of armed conflict, and has been redesignated several times, in 2014, 2016, 2017 and again in April 2019 through Nov. 2, 2020.