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In this week’s spotlight, BAL’s Josiah Curtis and Shane Andrews discuss hot topics from this year’s SHRM conference, from a potential H-1B second lottery to Kelly Clarkson.
Top immigration news clips include the Supreme Court’s overturn of the Chevron doctrine and Ireland’s new Employment Permits Act 2024.
Get these insights and more in the latest episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 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 U.S. State Department released the August Visa Bulletin, showing that most key employment categories remained the same, with only India advancing under EB-2 and EB-3.
Final Action Dates Movement:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: As the State Department noted, demand and number use has remained high in the EB-3 visa category. Although retrogression has not been necessary for August, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September. BAL will continue to monitor the State Department’s actions and report on updates accordingly.
U.S. Citizenship and Immigration Services will announce which chart it will use to determine filing eligibility here.
The Department of Homeland Security announced the extension and redesignation of Yemen for Temporary Protected Status for 18 months, from Sept. 4, 2024, through Mar. 3, 2026.
Key Points:
Additional Information: The DHS determined an 18-month extension and redesignation of Yemen for TPS was warranted because of the ongoing conflict for the past decade “pushing the country to the brink of economic collapse.” U.S. Citizenship and Immigration Services will continue to process pending applications filed under previous TPS designations for Yemen. Individuals with a pending Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization, as of July 10, 2024, do not need to refile.
This extension and redesignation does not apply to anyone who was not already in the United States on July 2, 2024.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing Times: As of July 1, the department was adjudicating applications filed in June 2023 and earlier, conducting audit reviews on applications filed in December 2022 and earlier and reviewing appeals for reconsideration filed in September 2023 and earlier.
Average Number of Days to Process PERM Applications
PWD Processing Times: As of July 1, the National Prevailing Wage Center was processing PWD requests filed in January 2024 and earlier for H-1B OEWS cases and December 2023 and earlier for PERM OEWS cases. For H-1B and PERM non-OEWS cases, the department was processing requests filed in June 2023 and earlier. Redeterminations were being considered on appeals filed in March 2024 and earlier for H-1B cases and January 2024 and earlier for PERM cases. Finally, Center Director Reviews were being conducted for both H-1B and PERM cases filed in August 2023 and earlier.
BAL Analysis: While DOL reports that they are adjudicating cases filed in June 2023, as of this time BAL has not yet received adjudications of PERMs filed in June 2023.
The U.S. Supreme Court ruled 6-3 in Loper Bright Enterprises v. Raimondo, overruling the Chevron case precedent that was the issue before the court. The majority opinion held that, “[t]he Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
The 1984 decision in Chevron v. Natural Resources Defense Council established the Chevron doctrine, which instructs courts to defer to an agency’s reasonable interpretation of an ambiguous statute.
In overturning Chevron, the court found that “Chevron has proved to be fundamentally misguided” and “[it] was a judicial invention that required judges to disregard their statutory duties.”
The dissent, written by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, concluded, “In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law … the majority turns itself into the country’s administrative czar.”
BAL Analysis: BAL commented earlier this year that the outcomes in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo could have a revolutionary impact on immigration litigation, including the power that immigration judges have over noncitizens and the standard of review used by federal judges in reviewing immigration decisions. BAL is reviewing this and other Supreme Court decisions and assessing how they could impact immigration programs.
The U.S. Court of Appeals for the District of Columbia Circuit reversed district court decisions ordering the Department of State to reserve and adjudicate diversity visa cases from the DV-2020 and DV-2021 program years.
Additional Information: In the opinion, the D.C. appellate court wrote, “Once Fiscal Years 2020 and 2021 ended, the plaintiffs lost their eligibility for diversity visas. The district courts erred in asserting an equitable authority to override these clear statutory deadlines.”
BAL Analysis: BAL will continue to monitor appeals in this case for relevant changes in status and provide updates as information becomes available.
The Department of Homeland Security announced the extension and redesignation of Haiti for Temporary Protected Status for 18 months, from Aug. 4, 2024, to Feb. 3, 2026.
Additional Information: After consultation with interagency partners, DHS determined an 18-month extension and redesignation of Haiti for TPS was warranted because of ongoing urgent humanitarian needs and that doing so was not contrary to U.S. national interests. U.S. Citizenship and Immigration Services will continue to process pending applications filed under previous TPS designations for Haiti. Individuals with a pending Form I-821, Application for Temporary Protected Status, and Form I-765 as of July 1, 2024, do not need to refile.
This extension and redesignation does not apply to anyone who was not already in the United States on June 3, 2024, and consequences continue to be enforced on those attempting to cross unlawfully or without authorization into the United States.
The Supreme Court rules in a visa denial case involving a U.S. citizen and her non-immigrant spouse.
An American Immigration Council report reveals increasing reliance on H-2A workers.
BAL’s Steven Plastrik breaks down the results from our election survey.
The American Immigration Council (AIC) recently published a special report, The Expanding Role of H-2A Workers in U.S. Agriculture, analyzing U.S. Department of Labor data to show increasing reliance on certified H-2A workers in American food production.
Additional Information: Established in 1987, the AIC is the public policy advocacy partner of the American Immigration Lawyers Association, collaborating with diverse stakeholders including policymakers, grassroots organizations and immigrant communities to advance results-driven solutions to the challenges facing immigrants and communities throughout the United States.
BAL Analysis: The AIC report’s findings highlight the significant impact of H-2A workers on the agricultural sector, their role in keeping U.S. farms running and the urgent issues H-2A workers face. The U.S. Department of Labor finalized the Farmworker Protection Rule in April including protections that increase transparency in the application process, allow workers to engage in collective action, establish standards for termination and prohibit employers from withholding workers’ passports and immigration documents. The rule is scheduled to take effect on June 28.
Find out if your company qualifies for the H-2A visa program here and learn more about how BAL can help your company with compliance.
The U.S. Supreme Court today ruled 6 – 3 in Department of State v. Muñoz that “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”
The case involved Sandra Muñoz, a U.S. citizen, who sued the federal government after her husband, Luis Asencio Cordero, a citizen of El Salvador, was denied a visa after a U.S. consular officer in San Salvador found he was inadmissible under federal law. His visa refusal letter referred to the applicable section of law, INA 212(a)(3)(A)(ii) (“other unlawful activity”), but did not provide a detailed reason for the denial. As part of the litigation record, the State Department later clarified that the basis for the refusal was that the consular officer had reason to believe Asencio Cordero was a member of the gang MS-13, based in part on his tattoos.
In 2022, the 9th U.S. Circuit Court of Appeals ruled in favor of the couple. The Biden administration asked the Supreme Court to reverse the ruling. Today, in addressing the primary issues, the court held that the consular officer’s decision for a basis of refusal was final and conclusive and it would not interfere with such policy choices despite the harm Muñoz endured because, ultimately, she does not have a constitutional right to participate in her spouse’s consular proceeding.
Additional Information: The dissent, written by Justice Sonia Sotomayor and joined by Justices Elena Kagan and Katanji Brown Jackson, found the ruling broad on marriage and narrow on procedure, citing supporting briefs from former consular officers that demonstrated consular decisions “often rely on stereotypes or tropes…even bias or bad faith.”
A transcript of the oral arguments presented before the court in April this year can be found here. Audio of the oral arguments can be heard here.