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The U.S. Justice Department has asked a federal court to dismiss a case challenging Deferred Action for Childhood Arrivals, citing a recent U.S. Supreme Court ruling.
Key Points:
Additional Information: District Court Judge Andrew Hanen is hearing the DACA case after the Fifth Circuit Court of Appeals ruled that the memorandum that created DACA in 2012 was unlawful but also asked the district court to consider the legality of a Biden administration rule to protect DACA. The Biden administration constructed the rule to “preserve and fortify” DACA, but the states challenging the program say it “suffers the same flaws” as the 2012 memorandum.
Currently, the Department of Homeland Security continues to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients; the agency remains prohibited from granting initial DACA requests and accompanying requests for employment authorization. BAL will continue to monitor the ongoing litigation and will provide updates on important developments related to DACA.
This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2023 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 White House Office of Management and Budget is reviewing two proposed regulations designed to update H-2 visa programs. The text of the proposals is not yet available, but OMB review is the last step in the rule-making process before they can be published.
The proposed regulations are designed to:
Additional Information: Both regulations will be published as proposed rules, meaning they will go through a notice-and-comment period before they are updated and published as final rules. BAL will continue following the development of these regulations and will provide updates on how they will impact H-2A and H-2B employers.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2023 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.
A final rule to allow the Department of Homeland Security to provide alternatives to physical document examination in some scenarios in the Form I-9 process has cleared White House Office of Management and Budget review.
Additional Information: The temporary U.S. Immigration and Customs Enforcement flexible policy will end July 31, and employers must physically review all documents they viewed virtually by Aug. 30.
BAL Analysis: The rule will allow DHS to authorize “alternative document examination procedures in certain circumstances or with respect to certain employers” in hopes of reducing burdens on employers and employees while preserving the integrity of the employment verification process. However, it is not yet clear when DHS will make alternative procedures available or which employers will be eligible to use them. BAL continues to monitor the progress of the rule and will provide updates as information is made available.
The State Department released the August Visa Bulletin, showing significant retrogression in the employment-based first preference category for India and the third preference category for all other countries except China. Employment-based second and third preference categories for China show some advancement.
U.S. Citizenship and Immigration Services announced it would use the Final Action Dates chart to determine employment-based filing eligibility for adjustment of status.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: USCIS said it would use the Dates for Filing chart for family-based adjustment-of-status applications next month.
The August Visa Bulletin stated that it would introduce an EB-1 final action date and retrogress EB-3 for Rest of World countries, Mexico and the Philippines to hold number use within the maximum allowed under the fiscal year 2023 annual limit. The State Department also said that it could no longer issue EB-1 visas for India without regard to visa allocations for other countries; therefore, applicants from India are no longer able to receive EB-1 numbers for FY2023.
BAL Analysis: As a reminder, it is likely the final action date will advance in October to at least the final action date announced in the July Visa Bulletin; however, the movement of the date depends on variables such as visa demand and the employment-based FY2024 annual limit. BAL will continue to monitor Visa Bulletin developments and will provide updates as information becomes available.
Copyright © 2023 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 Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of June 30, the department was adjudicating applications filed in September 2022 and earlier, conducting audit reviews on applications filed in May 2022 and earlier, and reviewing appeals for reconsideration filed in August 2022 and earlier.
Determinations:
March 2023
April 2023
May 2023
Adjudication
271 days
279 days
285 days
Audit Review
402 days
383 days
436 days
PWD Processing: As of June 30, the National Prevailing Wage Center was processing PWD requests filed in January 2023 and earlier for H-1B OES and PERM OES cases, November 2022 and earlier for H-1B non-OES cases, and September 2022 and earlier for PERM non-OES cases. Redeterminations were being considered on appeals filed January 2023 and earlier for H-1B cases, and November 2022 and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in June 2023 and earlier.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing slightly faster PERM issuances and PWD issuances for PERM OES and non-OES cases. BAL is seeing approvals for PERM applications filed in September 2022 and earlier, and is starting to see PWDs for requests filed in January 2023 and earlier for H-1B OES cases, November 2022 and earlier for H-1B non-OES cases, and January 2023 and earlier for PERM OES.
The Department of Homeland Security will add eight new qualifying fields of study to its STEM Designated Degree Program List, according to a notice scheduled to be published in the Federal Register tomorrow.
The government uses the STEM Designated Degree Program List to determine F-1 students’ eligibility for the 24-month extension of their post-completion Optional Practical Training, based on their science, technology, engineering or mathematics degree. Additions to the list make more students eligible for the STEM OPT extension.
The additions mark the second substantive update to the list since the STEM OPT regulation took effect in 2016, with 22 fields added in January 2022. The eight fields that will be added are:
Additional Information: The update will take effect upon the notice’s publication in the Federal Register, which is scheduled for tomorrow, July 12. More information about each field of study is available in the prepublication version of the notice.
U.S. Customs and Border Protection announced that travelers who have visited Cuba on or after Jan. 12, 2021, or are nationals of Cuba are ineligible to travel to the United States under the Visa Waiver Program using an Electronic System for Travel Authorization.
Additional Information: On Jan. 12, 2021, the U.S. Secretary of State designated Cuba as a State Sponsor of Terrorism, making individuals who have been in Cuba on or after Jan. 12, 2021, ineligible for travel under the VWP. The designation also makes individuals who are dual nationals of both a VWP country and Cuba at the time of applying for an ESTA ineligible for travel under the VWP. More information is available here.
BAL Analysis: Travelers who are ineligible to travel under the VWP are reminded that they are not prohibited from traveling to the United States. Those who are ineligible to travel under the VWP may apply for a visa at any U.S. embassy or consulate.
H-1B is a nonimmigrant classification for temporary employment in the United States. There are three types of foreign nationals (also known as “beneficiaries”) who may have petitions filed on their behalf under the H-1B classification:
The main requirements to be eligible for the H-1B classification are:
The foreign national must have an “employer-employee” relationship with the petitioning U.S. employer (also known as the “petitioner”). This means the petitioner must generally have the right to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.
The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:
The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:
The foreign national must meet the minimum educational and/or experience requirements for the specialty occupation position. This means the employer must demonstrate that the foreign national holds the required bachelor’s degree (or higher degree), or has sufficient relevant experience equivalent to the minimum educational requirements for the specialty occupation position, and is otherwise qualified for the specialty occupation position.
The H-1B classification is limited to an annual cap of 85,000 new visas in each fiscal year. This includes 20,000 H-1B visas set aside for foreign nationals who obtained a master’s degree from a U.S. university. New H-1B visas become available each year on October 1, which is the start of the government’s fiscal year. Because the demand for new H-1B visas is often higher than the available 85,000, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery in March of each year to select which U.S. employers may petition for one of the new H-1B visas that will be available the following October.
Check out BAL’s analysis of the FY 2024 H-1B cap registration and selection numbers for fiscal years 2021-2024.
Check out BAL’s latest H-1B Cap Post-Lottery podcast episode!
H-1B classification may be granted in increments of up to three years at a time and extended in increments of up to three years at a time. Extensions can be initiated up to six months prior to the expiration of H-1B status.
In general, a foreign national may hold the H-1B classification for a maximum of six years. Time spent in H-1B, L-1A, and L-1B classifications are counted together toward the applicable maximum.
After reaching six years in H-1B classification, the foreign national may:
There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:
Obtaining H-1B classification requires a number of steps:
Premium processing is an optional service offered by U.S. Citizenship and Immigration Services (USCIS) that provides expedited processing for certain Forms I-129 (Petition for a Nonimmigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker). In most cases, premium processing for Form I-129 petitions for the H-1B classification guarantees processing by USCIS within 15 calendar days for an additional fee. If USCIS does not take action on the Form I-129 within the 15 calendar days after it receives the request for premium processing, USCIS will refund the additional fee and will continue with expedited processing.
If a registration is selected in the lottery, there are two options for filing the H-1B petition during the 90-day filing window, depending on where the foreign national is when the petition is filed and how the foreign national plans to activate the H-1B status after the petition is approved.
Change of Status: If currently in the U.S. and in another valid status (e.g., F-1, L-1) at least until October 1, we can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. If the foreign national is currently in the U.S. in F-1 status — including an Optional Practical Training (OPT) or STEM extension — but their status will expire before October 1, they may be eligible for a cap gap extension of their F-1 status to that date.
Consular Notification: However, if the foreign national is not in the U.S. at the time the H-1B petition is filed, does not have another status valid until October 1, or if other situations (explained below) apply, the H-1B petition is filed as a “consular notification” petition. In this situation, in order to activate H-1B status after the H-1B petition is approved, the foreign national will need to enter the U.S. with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport. The foreign national will need to obtain an H-1B visa at a U.S. embassy or consulate while outside the U.S. H-1B status will take effect after the foreign national obtains the H-1B visa and uses it and the H-1B approval notice to enter the U.S. If in the U.S. when the H-1B petition is approved, the foreign national will need to leave the U.S. and re-enter with their H-1B approval notice after receiving their H-1B visa from the U.S. embassy or consulate. Note that Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the U.S. with the H-1B approval notice. The earliest the foreign national can enter the U.S. to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.
If a foreign national’s case is filed as a change of status, H-1B status will automatically take effect on October 1, 2023, or on the date the petition is approved, whichever date is later. If the case is filed as a consular notification, H- 1B status will take effect after the foreign national activates H-1B status by entering the U.S. with their H-1B visa and H-1B approval notice. As a reminder, Canadians are visa exempt and do not have to apply for a visa at a U.S. embassy or consulate. To activate their H-1B status, they can show their H-1B approval notice to a Customs and Border Protection officer when entering the U.S.
If a foreign national’s H-1B petition is a change of status, he or she does not have to travel to activate H-1B status. If the H-1B petition is a consular notification, the foreign national must obtain an H-1B visa at a U.S. embassy or consulate (unless Canadian) and then travel to the U.S. to be admitted to the U.S. in H-1B status.
Foreign nationals will need to bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the U.S. embassy or consulate’s website to learn what specific documentation is required, as every U.S. embassy or consulate has different application procedures and requirements.
Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.
Do you need BAL to file H-1Bs for your employees/organization? Click here to to contact us so we can help.
Form I-9 COVID-related flexibilities will end on July 31. U.S. Immigration and Customs Enforcement will give employers a 30-day grace period, or until Aug. 30, to reach compliance with Form I-9 document inspection requirements after the special measures end.
Additional Information: The Department of Homeland Security continues to work on a rule that would give ICE authority to allow remote inspection of documents in some cases. The agency published a proposed rule in August 2022 and received more than 500 public comments, including one from BAL. DHS is currently reviewing the public comments and plans to issue a final rule later this year.
BAL Analysis: The 30-day grace period will give employers some additional time to review documents in person once the temporary flexibilities end; however, this is still a tight time frame, particularly given that some employers have been relying on the temporary policy for more than three years. BAL continues to encourage companies that have not yet started in-person reviews to start planning as soon as possible. BAL will continue to monitor the development of DHS’ new I-9 rule and will provide updates as information becomes available.
U.S. Citizenship and Immigration Services has launched a new self-service tool allowing benefit requestors, and their attorneys and accredited representatives, to reschedule most biometric services appointments.
Additional Information: USCIS issued policy guidance explaining that the agency may consider an untimely request to reschedule a biometric services appointment and the effect of failing to appear for an appointment, as well as how the agency considers a timely request to reschedule a biometric services appointment for “good cause.” Good cause exists when the reschedule request provides sufficient reason for the benefit requestor’s inability to appear on the scheduled date. More information is available here.
BAL Analysis: The new biometrics rescheduling tool aims to improve customer service by removing barriers and reducing burdens to applicants while saving time, increasing efficiency and reducing call volume to the USCIS Contact Center, USCIS said. Individuals are reminded that USCIS only accepts untimely rescheduling requests made to the USCIS Contact Center and does not accept untimely requests to reschedule by mail or in person at a USCIS office or through the myUSCIS online rescheduling tool.