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The Department of Homeland Security (DHS) announced Friday that it will terminate Temporary Protected Status (TPS) for Honduras. The termination date will be extended 18 months to allow for an orderly transition.
Key points:
Background: Temporary Protected Status allows certain foreign nationals to legally remain in the U.S. and apply for an employment authorization document following a designation by DHS that conditions resulting from natural disasters, unrest or other extraordinary and temporary circumstances prevent them from returning home. The original designation for Honduras was issued in 1999 after the country was struck by Hurricane Mitch. The end of TPS for Honduras will affect tens of thousands of Honduran nationals in the U.S.
In recent months, the Trump administration has extended TPS for South Sudan and Syria, but has terminated the designation for El Salvador, Haiti, Nepal, Nicaragua and Sudan. The administration also announced that it would end Deferred Enforced Departure for Liberian nationals.
BAL Analysis: DHS is advising Honduran nationals to prepare for and arrange their departure from the U.S. or apply for other types of visas during the 18-month transition period. Honduran nationals who wish to remain in the U.S. during the transition period will be required to re-register for TPS and apply for employment authorization documents. BAL will continue to monitor the Federal Register for information about when the re-registration period to extend TPS benefits will open.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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The Labor Department has posted processing times current as of April 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in December and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in August and earlier, and appeals filed in April and earlier are being reviewed for reconsideration.
Average PERM processing times in April:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in February and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in March and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in February and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in April:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in December and is awaiting PWDs for requests filed in February and earlier.
U.S. Citizenship and Immigration Services has provided an update on its policy agenda regarding regulatory reforms to the H-1B visa program as well as other changes affecting foreign nationals seeking to work in the United States. The updated list of agenda items was provided in a letter dated April 4 from the agency’s director, L. Francis Cissna, to Sen. Chuck Grassley, R-Iowa, who chairs the Senate Judiciary Committee.
Key regulatory initiatives:
Background: In addition to listing the agency’s anticipated regulations, the letter recounts several recent policy memos that tighten skilled-worker visa programs, including clarification of requirements for H-1B workers placed at third-party sites, a more targeted approach to H-1B employer site visits, expanded administrative site visits to L-1B petitions, raising the burden of proof in H-1B extension petitions, and clarifying the definition of TN economists. The initiatives are intended to comply with President Trump’s “Buy American, Hire American” Executive Order, which directs federal agencies to issue rules, policies and operational changes to tighten visa eligibility criteria, protect U.S. workers and prevent fraud and abuse.
BAL Analysis: The letter reiterates the agency’s regulatory and policy agenda as previously stated in its semiannual agenda released in December. The regulatory changes will not take place immediately—it usually takes a minimum of three months after a proposed regulation is issued before a final rule is published. Under the rulemaking process, a proposed rule is released and a notice and comment period, normally lasting 30 days, gives members of the public a chance to respond with comments. During this period, employers and other immigration stakeholders will have the opportunity to submit formal comments to the government. Thereafter, the agency must review the comments, make any changes to the regulation, and publish a final rule in the Federal Register. Typically, a regulation is not effective immediately and has a 30-day delayed effective date.
Employers are encouraged to work with BAL to plan for these changes, as well as to participate in the public comment period to help influence the direction of any new regulations. BAL will continue to provide clients with information on these and other regulatory and policy changes as it becomes available.
U.S. Citizenship and Immigration Services has revised its website to state that STEM Optional Practical Training (OPT) can only take place at the employer’s own worksite, not third-party sites.
Background: The OPT program allows eligible F-1 students with degrees in science, technology, engineering or mathematics to apply for a STEM OPT extension after an initial period of regular post-completion OPT. An Obama administration regulation expanded the STEM OPT extension from 17 months to 24 months, but also included new employer obligations and enforcement provisions, including one allowing U.S. Immigration and Customs Enforcement to conduct unannounced employer site visits. USCIS is citing this provision as the basis to not allow F-1 STEM OPT students to complete training at third-party worksites, saying that “ICE would lack authority to visit such sites.”
BAL Analysis: While STEM OPT regulations do not expressly bar students from working at third-party sites, USCIS has stated in this website update that doing so would undermine the government’s ability to conduct site visits to enforce program requirements. Employers who have STEM OPT students working at third-party sites, or who are hosting STEM OPT students who work for another employer, are encouraged to work with BAL to make sure they remain in compliance with USCIS policy.
The Department of Homeland Security has said that it will terminate Temporary Protected Status for Nepal. The termination date will be extended 12 months to allow for an orderly transition.
Background: Temporary protected status allows certain foreign nationals to legally remain in the U.S. and apply for an employment authorization document following a designation by DHS that conditions resulting from natural disasters, unrest or other extraordinary and temporary circumstances prevent them from returning home. Nepal was designated for TPS in 2015 following a 7.8 magnitude earthquake. DHS said in a statement that “conditions in Nepal have notably improved” and no longer support a TPS designation. The end of TPS for Nepal is expected to affect roughly 9,000 Nepalese nationals in the U.S.
In recent months, the Trump administration has extended TPS for South Sudan and Syria, but has moved to end the designation for El Salvador, Haiti, Nicaragua and Sudan. The administration also announced that it would end Deferred Enforced Departure for Liberian nationals. A decision on Honduras’ TPS designation is expected in the coming weeks.
BAL Analysis: DHS is advising Nepalese nationals to prepare for and arrange their departure from the U.S. or apply for other types of visas during the 12-month transition period. Nepalese nationals who wish to remain in the U.S. during the transition period will be required to re-register for TPS and apply for employment authorization documents. BAL will continue to monitor the Federal Register for information about when the re-registration period to extend TPS benefits will open.
The Supreme Court heard arguments Wednesday on the latest version of President Donald Trump’s travel ban, peppering attorneys on both sides with questions about the legality of the restrictions under the Immigration and Nationality Act and U.S. Constitution.
The travel ban has been enforced since December, following the Court’s decision to allow the administration to enforce the ban while challenges played out in the courts. The ban applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, with exact restrictions specific to each country. Chad was removed from the list of countries earlier this month.
Neal Katyal, an attorney for the parties challenging the order, said that in implementing the travel ban Trump has taken power under the Immigration and Nationality Act that “no president in 100 years has exercised,” countermanding Congress’ policy goals. He added that to accept the government’s arguments is to accept that “the president can take an iron wrecking ball to the statute and pick and choose things that he doesn’t want for purposes of our immigration code.”
Solicitor General Noel Francisco, by contrast, framed the travel ban as a narrow set of restrictions that were implemented after an “extensive worldwide process.” He noted that the order does not apply to “almost all the world, including almost all of the Muslim-majority world,” but rather to “a tiny number of countries.”
The justices seemed to split on traditional liberal/conservative lines. While Justice Kennedy asked hard questions on both sides of the case, he may be leaning toward supporting the ban based on the national security concerns raised by the government. The Court is expected to rule on the case, Trump v. Hawaii, in June.
BAL Analysis: The Court’s December order allowing the travel ban to remain in place pending appeal indicates that the Court may be inclined to support this version of the ban, and the justices’ questions on Wednesday suggest a narrow majority of the Court could rule in support of the ban.
The ban has not dramatically expanded the number of employees subject to travel restrictions for most companies. BAL released an FAQ on the restrictions when they were released in September.
A D.C. federal court has ruled that the Trump administration’s termination of the Deferred Action for Childhood Arrivals, or DACA, program was unlawful. The court is providing the administration 90 days to reissue the memorandum ending the program with a fuller explanation of its legal reasoning for doing so. If the government fails to do this, the DACA program will be “restored in full,” meaning the Department of Homeland Security would be required to accept both new and renewal DACA applications.
Key Questions:
How is this ruling different from the previous court decisions on DACA? The federal courts in California and New York both ordered DHS to continue accepting applications to renew DACA grants. The D.C. judge went further and will require the full restoration of the DACA program if the government fails to issue a new memorandum rescinding the program in 90 days. This means individuals would be able to submit new applications for relief under DACA under the rules that were in effect before the administration suspended the program.
When will the ruling take effect? The D.C. court is postponing the effective date of the ruling for 90 days. The government now has 90 days to reissue a memorandum rescinding DACA, “this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” The judge found that in rescinding DACA last fall, the government “failed to adequately explain its conclusion that the program was unlawful.”
Does this ruling change the current status of DACA? Not at this time. Since the judge is staying the order for 90 days, the ruling does not change current rules for DACA applications. DHS is still only accepting applications to renew DACA grants.
BAL Analysis: The ruling will not have a practical effect for 90 days. Currently, individuals who have already been granted relief under DACA may continue to submit applications to renew their DACA grants, but the government will not accept new applications. Instructions for filing renewal applications can be found on the U.S. Citizenship and Immigration Services website. Meanwhile, the other lawsuits are progressing through the federal appeals courts. BAL is continuing to monitor these lawsuits and will provide updates on any developments.
California employers are reminded that the state’s Immigrant Worker Protection Act (Assembly Bill 450) remains in effect even as the federal government seeks a permanent injunction and as some local jurisdictions voice support for the U.S.’s lawsuit. The law:
The law was signed by Governor Jerry Brown in October and took effect Jan. 1. It is one of three laws the federal government is seeking to invalidate in a lawsuit that was filed in March. The other laws in question are Assembly Bill 103, which directs the California attorney general’s office to investigate enforcement efforts of federal agents, and Senate Bill 54, California’s “sanctuary state” bill, which limits how much information state and local law enforcement can share with federal immigration authorities. A handful of localities have announced their support for the federal government’s lawsuit, but unless a judge rules to enjoin any of the state laws they will remain in effect throughout the state.
BAL Analysis: California employers should be aware of their legal obligations under AB 450, and are encouraged to take steps to update their I-9 and related policies and procedures and train key staff on the law. BAL will follow the litigation as it moves through the court system and will alert clients to any changes. A BAL FAQ on what employers need to know about AB 450 is available here.
U.S. Citizenship and Immigration Services has announced that in May it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s May Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. 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 May.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the May Visa Bulletin.
BAL Analysis: The announcement will affect Chinese and Indian nationals in the first, second and third preference categories and Philippine nationals in the third preference category. For other nationalities, the categories are current in both the Final Action and Dates for Filing charts for employment-based first, second and third preferences.
IMPACT – MEDIUM
What is the change? Applicants for United States visas in India may experience wait times of more than 30 days for visa interview appointments.
What does the change mean? The U.S. Embassy in New Delhi expects the increased wait times to continue for the next few months during the summer travel season. The embassy is encouraging individuals to apply early if they plan to travel to the U.S.
Background: According to the U.S. Embassy, the nonimmigrant visa workload in India is one of the largest in the world with more than 1 million visas processed a year, and the demand for visas to travel to the U.S. has increased by more than 60 percent in the last five years.
BAL Analysis: Visa applicants in India are encouraged to apply for U.S. visas as early as possible to factor in the increasing wait times during this peak period. Applicants are also reminded to avoid scams that promise faster processing times or guaranteed visas in exchange for a fee.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.