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The Department of Homeland Security announced today that it will extend the current restrictions on nonessential travel at land ports of entry with Canada and Mexico that were due to expire June 22.
Key points:
Additional information: The current restrictions remain in place. The government is expected to publish additional information, including the length of the extension, in coming days.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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Electronic issuance of PERM labor certification documents will be extended through September because of the ongoing impact of the COVID-19 pandemic, according to an announcement by the Office of Foreign Labor Certification (OFLC) today.
Additional information: Employers should make sure that the email address for the National Processing Center (plc.atlanta@dol.gov) is added to their address book and safe listed to avoid emails containing PERM documents from being blocked or sent to their spam folders.
In 2012, the Secretary of Homeland Security under President Obama issued a memorandum that instituted the Deferred Action for Childhood Arrivals program. DACA allowed undocumented immigrants who came to the United States as children and met certain eligibility criteria to (1) request a period of “deferred action” from the government and (2) apply for authorization to work in the U.S. Though a grant of DACA represents the government’s decision not to take action to remove a person from the U.S., it does not impart any legal immigrant or nonimmigrant status. DACA benefits are generally valid for two years from the date of issuance.
More than 835,000 “Dreamers” have been granted relief under DACA since the program was established. As of March 2024, there are an estimated 528,300 active DACA beneficiaries in the U.S. The most up-to-date data on the DACA population can be found on the U.S. Citizenship and Immigration Services website.
The Trump administration moved to terminate DACA in 2017, and the program has been the target of multiple lawsuits. In 2021, a federal court in Texas ruled that the Obama administration did not follow proper administrative procedures in creating the program. President Joe Biden issued a memorandum upon taking office directing the Secretary of Homeland Security to take action to “preserve and fortify” DACA. The Department of Homeland Security (DHS) issued a proposed DACA regulation in September 2021 that drew more than 16,000 comments from the public, most of them in support. DHS published the final regulation in August 2022.
Yes. Litigation challenging DACA continues to be ongoing. In October 2022, the U.S. Court of Appeals for the Fifth Circuit upheld the 2021 ruling that the 2012 DACA memorandum was unlawful. However, the court also directed the lower court to consider the legality of the 2022 final regulation. The district court then ruled in September 2023 that the regulation was unlawful. The Biden administration appealed the ruling to the Fifth Circuit.
DHS continues to adjudicate renewal requests for DACA and employment authorization under DACA, along with advance parole requests for DACA recipients. Under court order, DHS cannot adjudicate first-time DACA requests at this time. Given the uncertainty around the litigation, current DACA beneficiaries are encouraged to file to renew their DACA and work authorization as early as possible. More information can be found on the USCIS website.
No. In 2020, the Supreme Court ruled that the Trump administration did not follow proper administrative procedures when it attempted to end DACA. The Court has not ruled on the legality of DACA itself. However, the current case challenging the 2022 DACA regulation that is moving through the courts does concern the legal merits of DACA. If the Fifth Circuit upholds the district court’s ruling that DACA is unlawful, the Supreme Court will likely take up the case and issue a ruling on DACA’s legality.
Only Congress has authority to provide a permanent solution for Dreamers that offers legal status in the U.S., and stakeholders have been encouraging lawmakers for years to find a bipartisan solution. It is impossible to predict at this time whether Congress will pass a law that grants some form of relief from removal to DACA beneficiaries.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of May 31, the department was adjudicating applications filed in January and earlier, conducting audit reviews on applications filed in August and earlier, and reviewing appeals for reconsideration filed in April and earlier.
Average PERM processing times in May:
PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in March and earlier for H-1B and PERM cases. Redeterminations were being considered on appeals filed in April and earlier for H-1B cases and for PERM cases. Center Director Reviews were being conducted on appeals filed in March for PERM cases. The department reported no pending Center Director Reviews for H-1B cases.
Average times for issuance of prevailing wage determinations in May:
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 PERM applications filed in January and earlier, and is seeing PWDs for requests filed in March and earlier for H-1B cases and PERM cases.
The State Department has posted results of the Diversity Visa lottery for fiscal year 2021.
Background: The Diversity Visa program provides for 55,000 immigrant visas (green cards) to be issued to individuals from countries with low levels of immigration to the U.S. Individuals register during an annual registration period and are selected through a random lottery. The registration period for fiscal year 2021 Diversity Visas opened Oct. 2, 2019 and closed Nov. 5, 2019.
BAL Analysis: U.S. consulates around the world remain closed for routine visa services, including interviews, processing and visa issuance. Individuals who were selected in the DV lottery should anticipate delays in visa appointments as well as ongoing delays even after consulates reopen. The entry ban on immigrant applicants is likely to be extended beyond its current expiration date of June 22. If the ban is extended beyond Oct. 1, 2020, when DV appointments would normally begin, the 2021 DV lottery winners would be subject to the entry ban, but they remain eligible to apply for DV immigrant visas until Sept. 30, 2021.
The Labor Department will not extend certain flexible deadlines it provided to employers because of the COVID-19 pandemic, according to an FAQ issued by the Office of Foreign Labor Certification (OFLC) Thursday.
Background: The new FAQ rescinds Question #3 of the first COVID-19 bulletin that was issued March 20.
BAL Analysis: Employers in the PERM process should be aware that the Labor Department has not extended the above deadlines and that PERM applications will be denied if the recruitment was delayed beyond the temporary timelines. Employers may continue to seek an extension of response deadlines for audit notifications and other discretionary deadlines, though they will have to demonstrate a clear need and the granting of an extension is not assured.
The U.S. Department of Transportation announced Wednesday that it will suspend Chinese passenger operations to and from the U.S.
Background: The Department of Transportation cites actions by the PRC government that have impaired U.S. airlines from operating fully to and from China and concludes that it is in the U.S. public interest to order the suspensions.
BAL Analysis: The order may have a limited impact, given that the entry of foreign nationals who have been physically present for a 14-day period in China remains indefinitely restricted under a presidential proclamation that took effect Feb. 2.
Immigration and Customs Enforcement (ICE) has sent a proposed regulation that would set a maximum period of stay for foreign students, exchange visitors and media personnel to the Office of Management and Budget (OMB) for review.
BAL Analysis: Current rules regarding duration of status for F-1 students, J-1 exchange visitors, and representatives of foreign media will remain in place until a final regulation takes effect. BAL is closely monitoring the regulatory process and will provide more information when text of the proposed regulation is available.
Companies filing H-1B cap petitions for fiscal year 2021 are reminded that the 90-day filing period closes at the end of June.
Background: The agency debuted the H-1B electronic registration process this year, requiring all petitioners to submit a registration for each potential H-1B cap beneficiary. More than 275,000 registrations were submitted, and USCIS completed the selection process at the end of March. The agency announced last week that it plans to resume premium processing for cap-subject H-1B petitions June 22.
BAL Analysis: Companies should work with their BAL professional to ensure that their H-1B cap petitions are filed before the end of the month and identify cases for which premium processing will be requested when the expedited service resumes. BAL clients may log in to BAL’s H-1B Electronic Registration Resource Center for updates on H-1B cap season.
U.S. Citizenship and Immigration Services (USCIS) announced Friday that it will resume premium processing in phases beginning June 1 for Form I-129 Nonimmigrant Worker and Form I-140 Immigrant Worker petitions.
Key Points:
Additional information: USCIS suspended premium processing March 20 for all Form I-129 Nonimmigrant Worker and Form I-140 Immigrant Worker petitions because of the COVID-19 pandemic. In its announcement Friday, the agency stressed that dates are subject to change and that it would announce such changes if they are made.
BAL Analysis: Employers are encouraged to work with BAL to identify cases that qualify for premium processing as USCIC reintroduces the service in phases next month.