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The U.S. immigration system is at a critical crossroads, and the upcoming election will decide which path it takes into the foreseeable future.
In the last 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. The COVID-19 pandemic has compounded the restrictions and ground travel to a halt, with new travel bans and consulate closures that have further slowed visa and immigration processing, with demand further diminished by the COVID economic slowdown.
What should U.S. companies expect in the next four years? What additional changes would a second Trump term bring? What has Joe Biden promised in his immigration agenda? How do the candidates differ on the issues of high-skilled immigration, work visas and green cards, and how can companies plan for these changes? How will the ongoing COVID-19 emergency disrupt or inform the next president’s immigration agenda?
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Higher education and business organizations are urging the Trump administration to withdraw a proposed regulation that would set maximum periods of stay for foreign students and exchange visitors.
The proposed rule was published last month, with U.S. Immigration and Customs Enforcement (ICE) saying it would allow officials to better monitor whether F, J and I nonimmigrant visa holders are maintaining their status in the U.S. Opponents argue that the Department of Homeland Security (DHS) already has the tools it needs to do this, and that the regulation would hinder competitiveness in the global economy.
“If the United States is to remain a leader in science and innovation, we must encourage, rather than deter, the best minds from around the world to study and conduct research at our institutions,” said an Oct. 26 letter from the Presidents’ Alliance on Higher Education and Immigration. “One of the greatest strengths of our U.S. higher education system has been our ability to attract international students and scholars. These students and scholars enrich our classrooms, drive innovation, promote scientific advancement, and create jobs.”
The DHS rule would modify the period of authorized stay for international students, exchange visitors, and media personnel by eliminating the availability of duration of status (“D/S”) and imposing a fixed period of admission. It would establish new requirements for individuals in those visa categories to maintain and extend their status.
The Presidents’ Alliance argues that the issuance of the rule violated normal administrative procedures and would by bad policy by making U.S. higher education less competitive internationally, harming universities’ financial interests and intruding on academic decision-making. The rule has also drawn opposition from the Association of International Educators (NAFSA) and Compete America, a business coalition that advocates for creating jobs by reforming high-skilled immigration.
“Our nation’s competitive advantage in educational choices generates major benefits to U.S. educational institutions, to their students, and to our economy,” Compete America said in an Oct. 26 letter. “It is an important reason why the United States has achieved and maintained, for the time being, the leading competitive edge globally in technology and innovation. This (rule) is counterproductive to those national interests, obstructing the process for accepting foreign students into our higher education system and integrating them productively into our economy, without generating articulable benefits to the integrity of the immigration system.”
The final regulation will likely not take effect for months. A 30-day comment period on the proposed regulation ended Oct. 26, but the government will accept comments until Nov. 25 on form changes that are required by the rule. ICE must review and consider the comments before finalizing the rule, and may make changes to the rule based on comments it receives. The final rule is expected to have a 60-day delayed effective date.
BAL Analysis: Despite the opposition, the administration is pushing forward with ICE’s duration of status rule. BAL continues to work with Presidents’ Alliance on Higher Education and Immigration and other coalitions to push for maximally beneficial immigration policies for U.S. universities and companies. Current rules on duration of status for F, J, and I nonimmigrants will remain in place until a final regulation takes effect. BAL continues to follow the regulation as it moves through the rulemaking process and will provide additional 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.
Immigration and Customs Enforcement (ICE) is set to resume a 2019 policy that expanded the definition of “expedited removal” to a broader scope of non-citizens who may be deported. The policy was halted by a court, but an appeals court lifted the injunction last month.
Key Points:
Background: ICE issued the notice of the expanded expedited removal July 23, 2019. Four days later, a U.S. District Court in Washington, D.C. blocked the administUnration from implementing it. A federal appeals court reversed the lower court and the preliminary injunction was lifted last month, paving the way for ICE to implement the policy while the lawsuit proceeds.
The U.S. Embassy in India has advised nationals returning to India to renew their U.S. visas that they should anticipate lengthy delays.
Key points:
BAL Analysis: Indian nationals returning to India in the coming months to renew their visa stamps should plan for delays in consular appointments. During the year-end travel season, travelers are reminded of the risks of traveling because of the numerous travel bans in place and the possibility that the “physical presence” entry ban that currently applies to 31 countries may be expanded to additional countries on short notice. BAL will host a webinar with WERC on Dec. 3 on “Planning for Year-End Travel and Expiration of Travel Bans.” Register for the event here.
The State Department released the November Visa Bulletin Thursday, showing no movement to priority-date cutoffs in key employment-based categories. U.S. Citizenship and Immigration Services confirmed that it will follow the State Department’s Dates for Filing chart to determine filing eligibility next month.
Priority-date cutoffs advanced dramatically in October, making a huge number of immigrant visa applicants newly eligible to apply for adjustment of status (green cards). The lack of movement in November means that anyone who was eligible to apply for employment-based adjustment of status this month will again be eligible to do so next month.
Dates for Filing for Employment-Based Preference Cases:
Additional Information: USCIS confirmed that it will also use Dates for Filing for family-based applicants, except for F2A category applicants, who may use Final Action Dates.
BAL Analysis: The lack of retrogression—or backward movement—in priority-date cutoffs next month following the dramatic forward movement in October is welcome news. BAL has submitted adjustment-of-status applications on behalf of thousands of immigrant visa applicants this month and will continue to work closely with employers and employees on adjustment-of-status applications in the weeks and months ahead.
U.S. Citizenship and Immigration Services (USCIS) will soon propose a regulation to replace the annual H-1B lottery with a new selection process based on wage level.
BAL Analysis: The Department of Homeland Security and Department of Labor issued significant H-1B regulations earlier this month that are now subject to litigation. Several factors, including expected litigation and the upcoming election, will dictate the likelihood that the regulation is in place prior to next year’s H-1B registration process. BAL is continuing to review the proposal and will provide additional analysis and updates.
The Department of State (DOS) has posted prepublication versions of a proposed rule to eliminate the “B-1 in lieu of H” classification and supplemental visa application questions to collect additional information from applicants.
BAL Analysis: The changes in these proposals are not expected to take effect until 2021. DOS will accept comments for a 60-day period. BAL continues to monitor the progress of the State Department rules affecting business visitors and will provide additional information as it becomes available.
Acting Secretary Chad Wolf announced on Twitter Tuesday that the Department of Homeland Security will extend COVID-19 restrictions on nonessential travel across the U.S.’s land borders with Canada and Mexico.
Additional Information: The nonessential travel bans were imposed March 20, initially for 30 days, and have since been extended in 30-day increments.
Leading business organizations, universities and immigration groups filed lawsuits Monday challenging Trump administration regulations that amend H-1B eligibility criteria and wage requirements for the H-1B, H-1B1 and E-3 categories and permanent labor certifications (PERM).
Additional Information: Both the DHS and DOL rules were published Oct. 8, with the DOL rule taking effect immediately and the DHS rule set to take effect Dec. 7, 60 days from publication. In a separate lawsuit, a group of IT and computer-service companies sued on Friday in federal court in New Jersey to stop enforcement of the DOL regulation.
BAL Analysis: Both the DOL and DHS rules are now subject to litigation, and the challengers are seeking injunctions to block the government from enforcing them while the litigation proceeds. The rules will remain in effect unless a judge grants an injunction. BAL is closely monitoring the progress of these lawsuits and will provide updates on important developments.
A group of IT and computer service companies filed a lawsuit Friday to challenge the Labor Department’s new wage regulation. The regulation took effect Oct. 8 and significantly increases wage minimums employers must meet for the H-1B, H-1B1, and E-3 programs and permanent labor certifications (PERM).
Additional Information: The Department of Homeland Security (DHS) also published an H-1B rule this month that makes changes to the H-1B program, including narrowing the definition of “specialty occupation.” DHS also published its rule on Oct. 8, but it is not scheduled to take effect until Dec. 7, 60 days from publication. The DHS rule is not part of the ITServe litigation, but is also expected to be challenged in court.
BAL Analysis: The ITServe lawsuit challenges the legality of the Labor Department’s wage regulation, but the rule will remain in effect unless a judge rules that the government must stop enforcing it. Additional lawsuits seeking to block the DOL and DHS rules are expected. BAL continues to follow the litigation related to the new rules and will provide updates as information becomes available.