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With the holiday travel season approaching, many employees hope to visit family abroad, vacation overseas and perhaps renew their visa at the same time. COVID-19 continues to affect travel to the United States and other countries. BAL urges travelers to take precautions and consult their BAL professional when planning international travel.
Key Points:
BAL Analysis: While many countries have lifted COVID-19 travel restrictions, the United States continues to enforce a vaccine requirement for inbound nonimmigrant foreign nationals. Visa and passport service delays continue. Employers and employees should consult their BAL professional before planning any international travel.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2022 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 move to revoke federal recognition of an accreditor of for-profit colleges has affected two immigration-related student programs.
On Aug. 19, the U.S. Department of Education announced that it would no longer recognize the Accrediting Council for Independent Colleges and Schools (ACICS). This change has potential immediate effects for international students enrolled in or with a degree from ACICS-accredited schools. In particular, the change could affect students applying for a 24-month science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension or those enrolled in an English language study program.
Additional Information: ACICS’ loss of federal accreditation authority means that degrees issued by ACICS-accredited colleges and universities on or after Aug. 19 will not be recognized by federal immigration authorities. Holders of advanced degrees from ACICS-accredited colleges and universities will not be eligible for the H-1B advanced degree exemption (the “master’s cap”). Additionally, ACICS-accredited colleges and universities will not be able to qualify for H-1B cap or fee exemptions as an institution of higher education.
BAL Analysis: Officials said they would provide notification letters with guidance for affected students if their schools’ accreditation is withdrawn. USCIS also encouraged students enrolled at ACICS-accredited schools to contact their Designated School Official (DSO) immediately for information about potential consequences for immigration status or benefits. More information is available here.
The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of Oct. 31, the department was adjudicating applications filed in February and earlier, conducting audit reviews on applications filed in December and earlier, and reviewing appeals for reconsideration filed in May and earlier.
Average PERM processing times:
PWD Processing: As of Oct. 31, the National Prevailing Wage Center was processing PWD requests filed in January and earlier for H-1B OES and PERM OES cases, February and earlier for H-1B non-OES cases, and December and earlier for PERM non-OES cases, according to the Labor Department. Redeterminations were being considered on appeals filed May and earlier for H-1B cases and PERM cases. There were no center director reviews pending.
Copyright © 2022 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 recently provided an update on worldwide visa operations, including information on wait times, backlogs and interview availability.
Additional Information: Delays plagued U.S. embassies and consulates around the world last year as they emerged from COVID-related closures. State Department officials said that visa processing times are improving but progress varies from post to post. Applicants can in some cases travel to other consulates to apply for visa services; however, depending on the specific situation, this may not be a feasible option.
BAL Analysis: While processing times are improving, appointment and processing delays should be expected at U.S. embassies and consulates throughout the world. Service levels vary from post to post. BAL will continue to monitor efforts to address processing delays and will provide more information as it becomes available. Employers and employees should continue to consult their BAL professional before planning international travel.
The U.S. State Department has authorized the voluntary departure of nonemergency employees and family members from the U.S. Embassy in Abuja, Nigeria.
Additional Information: U.S. citizens should review the State Department’s Nigeria travel advisory webpage for more information.
BAL Analysis: Companies with employees in Nigeria are encouraged to follow State Department information and warnings closely. Applicants with visa appointments at the U.S. Embassy in Abuja may experience delays or cancelations. Applicants with visa appointments at the U.S. Consulate in Lagos are encouraged to monitor email and text messages for information on scheduled appointments and/or passport pickups. BAL will continue to monitor developments regarding the increased security risks in Nigeria and will provide more information as it becomes available.
The U.S. State Department has launched a pilot program for qualifying U.S. citizens to renew their passports online.
U.S. citizens can renew their passports online through their MyTravelGov account if:
Additional Information: Individuals who are ineligible to renew their passport online may renew it by mail or in person. More information regarding the online passport renewal process is available here.
BAL Analysis: Qualifying U.S. citizens will benefit from the online passport renewal program by not having to renew their passports by mail or in person. U.S. citizens in need of a new passport should renew their passport as soon as possible to avoid delays and complications. Travelers should also be sure to check their destination country’s entry rules to determine if they have enough time remaining on their passport. Employers and employees should continue to consult their BAL professional before planning international travel.
This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
H-1B cap season is just around the corner. And while next year’s economic outlook is uncertain, employers should expect demand for high-skilled workers to remain elevated.
Employers are encouraged to begin H-1B planning now and should anticipate heavy competition for job candidates, many of whom will have multiple employment offers. The number of registrations regularly eclipses the number of cap-subject H-1B visas available, both for bachelor’s and advanced degree holders. Next year will almost surely be no exception.
Additional Information: USCIS received a record 483,927 H-1B registrations last cap season and selected 127,600 registrants to submit H-1B petitions. Because USCIS selected more registrations than it had in the previous two years, it did not run a second lottery following the initial filing period.
The U.S. Department of Homeland Security has said it will propose a rule to “modernize” certain H-1B requirements and oversight; however, the most recent regulatory agenda indicated that the agency is targeting May 2023 to publish a proposed regulation. Since the regulatory process typically takes several months, any changes are not expected to affect the FY 2024 cap season.
BAL Analysis: Demand for H-1B visas will likely be high again this cap season, and employers should expect candidates to have multiple job offers. Employers are encouraged to work closely with BAL regarding the immigration benefits employers can offer (e.g., immediate green card sponsorship), which petitions should be fully prepped before the registration lottery and possible H-1B alternatives for registrations that are not selected.
BAL will host a webinar on Wednesday, Oct. 26, titled “H-1B Planning: Current Trends and What to Expect This Cap Season.” More information is available here.
The Department of Homeland Security (DHS) on Friday announced an 18-month designation of Temporary Protected Status (TPS) for Ethiopia.
Additional Information: The decision to add Ethiopia under TPS was made due to conflict-related violence and a humanitarian crisis involving severe food shortages, flooding, drought and displacements, DHS said. BAL will provide additional information as it becomes available.
This alert has been provided by BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
A coalition of companies representing every major U.S. economic sector urged Congress on Thursday to protect Dreamers, saying the Deferred Action for Childhood Arrivals (DACA) program has been crucial to the health of the economy.
In a letter to Democratic and Republican leaders in the U.S. House of Representatives and Senate, the Coalition for the American Dream said the likelihood of an additional adverse court ruling makes legislation to protect Dreamers imperative.
“Collectively, we represent the backbone of an American economy facing tremendous workforce challenges as a result of the pandemic,” the Coalition’s letter said. “We face another crisis if Congress fails to act on an issue that has strong bipartisan support from the American people.”
The letter was signed by more than 80 companies and business organizations, including BAL. It was published in advertisements in The Wall Street Journal, The Dallas Morning News and The Charlotte Observer.
Earlier this month, the U.S. Court of Appeals for the Fifth Circuit held that the 2012 memorandum that created DACA was unlawful. It also asked a lower court to consider the legality of the Biden administration regulation, which was designed to codify and protect DACA.
The court left in place an injunction that allows the government to adjudicate renewal applications for both DACA and DACA-related work authorization but not first-time applications. This injunction will remain in place pending a further ruling from the court.
“The 5th Circuit Court’s ruling makes it clear that Congress cannot afford to ignore this issue any longer,” the Coalition’s letter said. “Bipartisan measures have already been introduced in the U.S. House and Senate. We urge you to swiftly pass legislation this year that will help Dreamers, American businesses, and our country.”
BAL Analysis: The Biden administration and immigration advocates alike have stressed that the only permanent solution to protect Dreamers is congressional action. Because of the uncertainty surrounding the litigation, individuals who are eligible for renewals of DACA or DACA-related employment authorization are encouraged to submit applications as soon as possible. BAL will continue to monitor the ongoing litigation and provide updates on important developments. For more information, visit our DACA Resource Center here.
Leading business and immigration organizations, including BAL, have issued comments urging the Department of Homeland Security (DHS) to allow employers to complete employment eligibility verification remotely.
The comments came in response to a proposed rule published in August that would allow DHS to provide optional alternatives to physical document examination in some scenarios in the Form I-9 process. Under temporary guidance, DHS has allowed employers operating remotely because of the COVID-19 pandemic to conduct verification of employee documents virtually, e.g., by using fax, email or video link.
“DHS’s implementation of flexible policies during the COVID-19 pandemic has demonstrated that employers can maintain compliant programs and verify the work authorization of their employees in a remote setting,” BAL said in its comment. “Employers have overhauled their office and remote work arrangements, and we encourage DHS to take this opportunity to develop processes that take these changes into account.”
DHS recently extended the temporary flexibilities through July 31, 2023.
The Business Roundtable, Compete America and the American Immigration Lawyers Association (AILA), among other organizations, joined BAL in calling for DHS to finalize the proposed rule and make remote document review available permanently.
“Our members’ companies and their employees have benefited significantly from the temporary ‘virtual’ policy,” the Business Roundtable said. “We encourage DHS to finalize this regulation without delay to formalize its authority to allow alternatives to in-person document review. Once the final regulation is in place, we urge the agency to move quickly to make fully remote verification a permanent option for employers.”
BAL Analysis: The business community has consistently shown strong support for making remote verification a permanent option. The proposed rule drew more than 500 comments, which DHS will now review before crafting a final rule. BAL will continue following the proposal through the regulatory process and will provide updates as information becomes available.