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The State Department posted two updates regarding the ongoing travel bans that suspend entry of immigrants and certain work-visa applicants.
Diversity visas. The agency will begin issuing immigrant visas to winners of the DV-2020 lottery, in compliance with a court order requiring the government to issue the visas by Sept. 30.
J-1 national interest exceptions. The State Department also posted FAQs regarding J-1 visa applicants who may be eligible for a national interest exception to the work-visa travel ban, including:
BAL Analysis: Visa applicants are reminded that multiple travel bans remain in place and many U.S. consulates are only accepting emergency appointment requests at this time, during the phased resumption of visa services. The State Department stated that it may reschedule interviews for applicants in other visa categories in order to prioritize DV applicants. Those who are issued diversity visas remain barred from entering the U.S. under the immigrant-visa ban, unless they qualify for an exemption. They may, however, enter the U.S. if the ban expires during the diversity visa’s validity period, typically six months. BAL is closely following the multiple lawsuits challenging the travel bans, and will report additional 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.
The Department of Labor (DOL) has sent a rule that will amend wage levels for H-1B and permanent labor certifications (PERM) to the Office of Management and Budget (OMB) for review. The text of the rule is not yet available.
Key points:
BAL Analysis: The Department of Homeland Security’s IFR, which will alter H-1B eligibility requirements, is also currently under OMB review. The text of both rules will be posted for public inspection in the coming weeks. It is not yet known whether the agencies will issue these rules with delayed effective dates. Though the agencies will likely argue that they do not need to consider public comments before making the rules effective, members of the public may still comment on an IFR. Litigation is expected, though it is too early to predict the likelihood of success. BAL is closely monitoring the progress of these rules and will report additional information on their potential impact when the text is available.
U.S. Citizenship and Immigration Services (USCIS) has proposed a regulation that would significantly expand biometrics collection by the government.
Key Points:
BAL Analysis: Current rules regarding biometrics collection will remain in place until a final regulation is issued, which will specify an implementation date. Because the proposed regulation raises privacy concerns, the agency is likely to receive a high volume of comments during the notice-and-comment period, and the regulation could be challenged in the courts. BAL is following these developments and will report new information as the regulation moves through the rulemaking process.
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.
On Friday, the U.S. Court of Appeals for the Second Circuit granted the government’s request to pause a preliminary injunction that blocked the Department of Homeland Security (DHS) from enforcing its public charge rule. The ruling clears the way for the agency to resume implementation of the public charge rule while the lawsuits work their way through the courts.
Additional Information: The ruling does not affect the injunction on the State Department’s version of the public charge rule. The State Department announced in August that it would not require applicants to submit forms required by its new public charge regulations so long as the injunction remains in place.
BAL Analysis: DHS has not yet responded to the ruling, but is expected to announce that it will resume nationwide enforcement of the new public charge rule. This lawsuit and multiple other lawsuits challenging the regulation continue to progress through the courts. BAL is closely following the litigation and will provide information on significant developments as it becomes available.
Acting Secretary of Homeland Security Chad Wolf has extended the Temporary Protected Status (TPS) designation for South Sudan for 18 months, from Nov. 2, 2020 to May 2, 2022.
Background: South Sudan was originally designated for TPS on Nov. 3, 2011 owing to armed conflict, and has been redesignated several times, in 2014, 2016, 2017 and again in April 2019 through Nov. 2, 2020.
U.S. Citizenship and Immigration Services (USCIS) announced it is extending certain flexible measures for petitioners and applicants.
Additional Information: The agency first introduced the temporary measures on March 30 because of COVID-19, and extended them in May and again in July.
The Department of Homeland Security (DHS) is poised to lift a requirement that flights arriving from countries that are considered high risk for COVID-19 land at one of 15 U.S. airports.
Additional Information: The rule to lift the airport restrictions is scheduled to be published in the Federal Register next week.
BAL Analysis: While the change will ease travel procedures for some, it is important to note that the physical presence bans imposed by the administration remain in place at this time, and only those who are exempt from the bans can travel to the U.S. from the countries listed above. These restrictions do not have a set expiration date and will remain in effect until the president lifts them. In the past, restrictions have been expanded to additional countries with little notice, and there continue to be risks associated with international travel. BAL encourages those who are considering international travel to consult with their employer and BAL professional for an individual assessment.
U.S. Customs and Border Protection (CBP) re-opened most Trusted Traveler enrollment centers Sept. 8. The enrollment centers had been closed since March 19 due to COVID-19.
BAL Analysis: Although Trusted Traveler enrollment has resumed, travelers are encouraged to consult with their employer and BAL professional for an individual assessment before planning any international travel. In addition to company policies that may limit travel, multiple travel bans remain in place for foreign nationals entering or returning to the U.S. These include entry bans on individuals who are physically present in Brazil, China, Iran, Ireland, the United Kingdom, or any country in the Schengen region within 14 days of attempting to enter the U.S.; bans on certain immigrants and nonimmigrant work-visa categories; and a ban on nonessential travel across U.S. land borders. Additionally, depending on COVID-19 developments in individual countries, new countries may be added to the physical presence ban with little notice, which could leave travelers stranded abroad.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As Aug. 31, the department was adjudicating applications filed in April and earlier, conducting audit reviews on applications filed in November and earlier, and reviewing appeals for reconsideration filed in June and earlier.
Average PERM processing times in August:
PWD Processing: As of Aug. 31, the National Prevailing Wage Center was processing PWD requests filed in May and earlier for H-1B cases and March and earlier for PERM cases, according to the Labor Department. Redeterminations were being considered on appeals filed in August and earlier for H-1B cases and for PERM cases. There were no center director reviews pending for H-1B or PERM cases.
Average times for issuance of prevailing wage determinations in August:
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 April and earlier, and is seeing PWDs for requests filed in May and earlier for H-1B and PERM (OES) cases.