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President Donald Trump has extended the “wind down” period for the end of Deferred Enforced Departure for Liberians, a decision that will allow eligible Liberian DED beneficiaries to continue living and working in the United States through March 30, 2020. The 12-month extension comes a year after Trump announced that the U.S. would end DED for Liberian nationals.
Key Points:
Background: The administration’s decision last year to end DED for Liberians was consistent with the steps it has taken to end temporary immigration protections for nationals of a number of countries. The U.S. has moved to end Temporary Protected Status protections for nationals of several countries, including El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. Those efforts have been put on hold, however, because of ongoing litigation. On March 8, a group filed suit in the U.S. District Court in Massachusetts to stop the termination of DED for Liberian nationals. That litigation is also still pending.
BAL Analysis: The decision to extend the wind-down period means Liberian DED beneficiaries will be able to live and work in the U.S. for another year, through March 30, 2020. Eligible Liberian DED beneficiaries will have their work authorization automatically extended for six months, through Sept. 27, 2019. Instructions for extending work authorization beyond that point will be published soon.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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A proposed regulation that would rescind the “H-4 EAD rule” that allows certain H-4 visa holders to apply for employment authorization documents remains pending at the Office of Management and Budget’s Office of Information and Regulatory Affairs. After OMB clears the proposed rule, the Department of Homeland Security will publish it in the Federal Register. DHS indicated in a court filing Monday that the rule “is expected to shortly be issued.”
Key points:
Background: Issued in 2015 during the Obama administration, the H-4 EAD rule allows H-4 spouses of H-1B workers who are at certain stages of the green card application process to apply for employment authorization in the U.S. A regulation to rescind that rule has been expected since DHS put it on the agenda in late 2017. The lawsuit, Save Jobs USA v. DHS, was brought by a group of American tech workers who claimed that DHS lacked statutory authority to issue the rule and that the rule harmed American tech workers. A lower court ruled in favor of the government, and Save Jobs USA appealed the ruling. The D.C. Circuit Court of Appeals then put the case on hold for months as DHS worked toward issuing a rescission rule that would moot the case. In December 2018, the court restarted the case and set a briefing schedule.
In its brief filed Monday, DHS argued that the appeals court should affirm the lower court’s ruling, and argued that Save Jobs USA does not have standing to challenge the H-4 rule. DHS also urged the court not to decide whether DHS has the statutory authority to issue such a rule. DHS told the court that “a notice of proposed rulemaking is expected to shortly be issued that would propose to remove H-4 dependent spouses from the class of aliens eligible for employment authorization. If proposed and finalized, the new rule is expected to rescind the H-4 Rule being challenged and moot this case.”
BAL Analysis: The current H-4 regulation remains in effect and eligible H-4 visa holders may continue to apply for new and renewal EAD cards. The fact that the Office of Information and Regulatory Affairs is continuing to review the rule indicates that the rescission rule remains in progress and DHS is working toward issuing a proposed regulation. Following publication of the proposed rule, the public will have an opportunity to submit comments to the government, and it typically takes several months for the agency to issue a final rule. The agency has not indicated whether the rule will allow a transition period for current H-4 EAD holders to continue working for a designated period. BAL is closely following the H-4 rescission rule and will report any developments as the rule progresses.
U.S. Citizenship and Immigration Services has confirmed that on May 20 it will begin premium processing for H-1B cap-subject ‘change of status’ petitions only. The announcement follows the agency’s announcement in March that it will offer premium processing for H-1B cap petitions in a two phases, with the first phase beginning no later than May 20 for “change of status” petitions. The second phase of premium processing, covering all other H-1B cap-subject petitions, is not expected to begin until June 2019 or later.
Background: USCIS announced on March 19 it would take a two-phased approach to premium processing for fiscal year 2020 H-1B cap season. Premium processing allows petitioners to request 15-day service for an additional fee. USCIS must take action on the petition within 15 days or refund the fee.
BAL Analysis: The two-phased approach is intended to better regulate USCIS workflow and avoid having to suspend premium processing for all H-1B petitions. Employers filing for H-1B cap change-of-status requests should plan to file premium processing requests concurrently and anticipate the 15-day premium processing clock to begin May 20; they should also note that change-of-status requests require that the candidate be physically present in the U.S. at the time the H-1B is filed and at least until approval. Employers filing all other H-1B cap petitions should anticipate that premium processing will not begin until June or later. BAL will continue to provide updates regarding the fiscal year 2020 cap as USCIS makes information available.
The filing period for cap-subject H-1B petitions opened Monday, with the number of petitions once again expected to exceed the number of H-1B visas available within five business days.
The Trump administration continues to take steps to reform the program. This year will be the first in which the order of the regular and advanced-degree lotteries will be reversed, under a new regulation that took effect April 1. U.S. Citizenship and Immigration Services has launched a new H-1B Employer Data Hub that allows the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state or ZIP code. The agency will offer premium processing in two phases. The first phase of premium processing will begin May 20 and cover only H-1B change-of-status petitions; the second phase of premium processing will cover all other cap-subject petitions and is expected to begin in June or later.
For first-time filers or those in need of a refresher, here is how the H-1B cap process works:
Cap-subject H-1B filings dropped 4.5 percent to 190,098 last year but still easily exceeded the cap. Despite the administration’s efforts to tighten access to the H-1B and related programs, volume is expected to be high again this year. USCIS has issued more H-1B denials and requests for evidence and expanded compliance site visits. The administration is also preparing to publish a proposed regulation to end work authorization eligibility for H-4 spouses of H-1B workers. USCIS has plans to introduce a mandatory online registration system for employers hoping to sponsor H-1B candidates under the annual cap next year. The administration initially aimed to implement the registration system this year but decided to postpone implementation in January.
BAL Analysis: The H-1B cap has been reached during the first week of filing in each of the past six years and there is every indication that this will happen again this year. BAL will report any significant H-1B developments, including information about the number of petitions, the completion of the lottery and the resumption of premium processing for cap-subject petitions.
U.S. Citizenship and Immigration Services has been expanding and increasing compliance site visits of H-1B employers. The agency’s Fraud Detection and National Security (FDNS) unit is adding staff and stepping up its targeted H-1B site visits in particular, as well as piloting targeted site visits of L-1B employers.
Employers should anticipate more targeted visits and prepare their H and L workers, as well as frontline staff, on what to expect if they are visited by USCIS officers.
What to expect during a targeted site visit:
Background: The FDNS unit first introduced administrative site visits of H and L employers in 2009. In 2017, the USCIS Office of Inspector General released a report that was critical of the site visit program’s effectiveness. In response, USCIS adopted several recommendations, including the introduction of targeted site visits.
While the agency is continuing random ASVVP visits, it has taken steps to shift its focus to conduct more targeted visits. FDNS entered into information-sharing agreements with the Justice Department and the Labor Department to increase visibility with representations being made between the agencies on various application types. Following President Trump’s “Buy American and Hire American” executive order in April 2017, USCIS issued a policy guidance entitled “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Fraud and Abuse.” The more targeted approach focuses H-1B site visits on (1) cases where USCIS is unable to verify the employer’s information through commercially available data, (2) H-1B dependent employers, and (3) companies that petition for H-1B workers who work off-site at another employer’s location.
BAL Analysis: H-1B and L-1 employers are encouraged to conduct internal reviews of their files to make sure they are in compliance and are prepared for a site visit by USCIS. Additionally, employers should be proactive in designating a contact in the event of a site visit by training HR staff and mobility teams, as well as H-1B and L-1 workers, about the possibility of a USCIS inspection, how to respond, and which documents are and are not covered by these types of audits. BAL can assist in these processes and provide guidance for employers on how to deal with the various type of USCIS site visits.
While U.S. Customs and Border Protection has not officially confirmed a change in policy or practice, Canadian nationals applying for L-1 readmission at various Canadian ports of entry are not being allowed to renew their L-1s under the North American Free Trade Agreement. Instead, they are being told that they must have an approved I-129 petition from U.S. Citizenship and Immigration Services.
Under NAFTA, Canadian nationals have been authorized to appear at Canadian border U.S. ports of entry or Canadian pre-clearance airports to apply for a renewed or extended L-1 without first obtaining an approved USCIS petition.
BAL Analysis: Despite the lack of a formal agency policy letter or advisory, individuals are being rejected at the ports of entry. There are strong legal arguments that Canadian L-1s presenting at U.S. ports of entry are not seeking extensions and therefore the regulations cited by CBP officials do not apply to them. Nevertheless, employers and Canadian L-1 applicants should be aware of the situation and should work closely with their BAL professional to determine the best method for renewing their L-1.
U.S. Citizenship and Immigration Services (USCIS) announced today that it will offer premium processing in two phases for H-1B cap-subject petitions, the first for “change of status” requests and the second for all other cap-subject petitions. The filing period for fiscal year 2020 cap season opens April 1.
Background: The announcement clarifies a previous announcement from last week regarding the resumption of premium processing. Premium processing allows petitioners to request 15-day service for an additional fee. USCIS must take action on the petition within 15 days or refund the fee.
USCIS also confirmed a few changes for this cap season. Under a new regulation, the agency will use a new H-1B cap selection process that reverses the order of the regular cap and advanced-degree exemption lotteries, thereby increasing the chance of selection for advanced degree holders. Additionally, the agency announced that it will be launching a new “H-1B Data Hub” on April 1 that will allow the public to search for H-1B petitioners by company name and see which employers are using H-1B visas.
BAL Analysis: Today’s announcement clarifies how USCIS will regulate premium processing for the upcoming cap season. Employers filing for H-1B cap change-of-status requests should anticipate that premium processing will not begin until May 20, and should note that change of status requests require that the candidate be physically present in the U.S. at the time the H-1B is filed and at least until approval. Employers filing all other H-1B cap petitions should anticipate that premium processing will not begin until June or later. BAL will continue to provide updates regarding the fiscal year 2020 cap as USCIS makes information available.
The Department of Labor (DOL) has posted guidance for employers on compliance with H-1B notice requirements by electronic posting, including the steps H-1B petitioners must follow when they place H-1B employees at third-party worksites.
The four-page bulletin says that H-1B petitioners must make the notice available to affected U.S. workers at third-party sites, including those who are not employed by the petitioner. Petitioners must also provide information about the location of the electronic posting. “If the H-1B petitioner informs the affected workers at the third-party site of the location of the electronic notice for their worksite, and the affected workers are able to determine which electronic notice applies to their worksite, the H-1B petitioner has complied with notice requirements,” the bulletin says.
BAL is continuing to review the guidance and will provide employers with additional analysis as necessary.
U.S. Citizenship and Immigration Services has announced that in April it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart, as published in the State Department’s April Visa Bulletin.
The Dates for Filing chart, also published in visa bulletin, will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine filing eligibility. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in April.
Final Action Dates for Employment-Based Preference Cases:
USCIS also announced that family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants in April.
The Trump administration has agreed to temporarily halt efforts to end Temporary Protected Status for Honduras and Nepal.
The move comes one month after TPS holders from the two countries sued the administration and after a federal judge in California issued a nationwide temporary injunction in a separate case to stop the administration from terminating TPS for Haiti, Sudan, Nicaragua and El Salvador.
In a joint filing, attorneys for the plaintiffs and the government said the claims in the case involving Honduras and Nepal were similar to those in the first case, and that it made sense for the government to halt the termination of TPS for Honduras and Nepal until the initial injunction is resolved on appeal. The parties agreed that TPS for Honduras and Nepal would be terminated no less than 120 days from the issuance of a possible appellate ruling lifting the current injunction.
BAL Analysis: TPS for Honduras had been set to expire on Jan. 5, 2020, while TPS for Nepal had been set to expire on June 24, 2019. The agreement means that the status quo on the validity of TPS documents and work authorization for TPS beneficiaries for the two countries will be preserved at least for 120 additional days from any adverse ruling if the government succeeds in lifting the injunction on appeal of the initial case, Ramos, et al, v. Nielsen. BAL will continue following developments in the Ramos case and will provide updates as information becomes available.