In this issue:

1. USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions – The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B cap filing season this March.

2. FY 2022 H-1B Visa Registration Period Starts March 9 – The initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021.

3. DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May – The proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”

4. USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions – USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.

5. Alejandro Mayorkas Confirmed To Lead Department of Homeland Security – Mr. Mayorkas has become the first immigrant and first Latino to serve as Secretary of Homeland Security.

6. Biden Signs Immigration-Related Executive Orders – President Biden recently signed several immigration-related executive orders.

7. USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction – USCIS will continue to abide by previous filing fee amounts because of two preliminary injunctions.

8. Judge May Extend Hold on Deportation Moratorium Until February 23 – The Department of Justice may appeal, but it was unclear as of press time whether it would.

9. OFLC To Reissue Certain Prevailing Wage Determinations – In response to a court order, OFLC will reissue certain PWDs issued under an interim final rule in two phases.

10. February Visa Bulletin Announces Green Card Projections for the Coming Months – The Department of State’s Visa Bulletin for February 2021 included information on potential monthly movement for employment-based green card categories through May.

11. Judge Rules STEM OPT Program Lawful – The order means that both the 12-month OPT and STEM OPT extension programs are lawful.

12. USCIS Extends Flexibility for Responding to Agency Requests – USCIS is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.

13. President Biden Names Jean King as New Acting Director of EOIR – Ms. King is a former general counsel for EOIR and most recently served as EOIR’s chief administrative law judge.

14. President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order – The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders.

15. TPS for Syria Extended, Redesignated – DHS announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians, through September 2022.

16. Biden Administration Withdraws Proposed H-4 EAD Rescission Rule From OMB Review – About 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) are affected, along with their employers.

17. ICE Extends I-9 Compliance Flexibility – ICE announced an extension of flexibilities in rules related to employment eligibility verification compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.

18. ICE Cancels Plans for OPT Employment Compliance Unit – The agency determined that the Student and Exchange Visitor Program already addressed many of the same responsibilities.

19. President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info – President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.

20. President Biden Sets in Motion a Flurry of Immigration Actions in First Days – Newly inaugurated President Joseph R. Biden launched a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals.

21. DHS Pauses Certain Removals for 100 Days – The Department of Homeland Security announced that it is pausing for 100 days removals for certain noncitizens ordered deported, with exceptions.

22. DOS Announces Reconsideration of Visa Denials Based on Travel Bans – The Department of State will undertake a review to ensure that those whose immigrant visa applications were denied because of Trump administration proclamations may have their applications reconsidered.

23. President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers – Among other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers.

24. Census Bureau Director Under Trump Resigns Amid Flurry of Accusations re Data on Undocumented Immigrants – The Census Bureau’s former director resigned after whistleblowers complained about the handling of data and reporting on undocumented immigrants, and following implementation of a court order.

25. Trump Grants Last-Minute Deferred Enforced Departure to Certain Venezuelans – On January 19, 2021, former President Trump announced Deferred Enforced Departure (DED) for certain Venezuelans for 18 months who meet requirements.

26. Biden Administration Poised to Introduce Immigration-Related Executive Orders; Democrats Prepare Legislation – The Biden administration has plans to introduce executive orders and push for immigration legislation “immediately” after taking office.

27. Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship – The agencies’ final rules make substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers.

28. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.

29. Labor Dept. Updates Implementation of Final Rule on H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations in Response to Court Order – In response to a court order, the Department of Labor made changes to implementation of its final rule on AEWR methodology for non-range occupations.

30. Labor Dept. Announces Pending H-2A Final Rule – The Department of Labor announced a final rule pending publication that mandates electronic filing of job orders and applications. The agency said this would make it easier to share information with the Department of Homeland Security and other entities.

31. SEVP Announces New OPT Employment Compliance Unit – The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training.

32. U.S. To Require Negative COVID-19 Tests From International Arrivals – Effective January 26, 2021, all airline or other aircraft passengers arriving in the United States from any foreign country, with a few exceptions, must present either a negative pre-departure coronavirus test or documentation of recovery from COVID-19.

33. DHS Extends Canada-U.S.-Mexico Border Restrictions – The Department of Homeland Security extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021.

34. USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities – USCIS announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox.

35. Judges Block Trump Asylum Rule, Refugee Local Placement Order – A U.S. district judge blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.

36. SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA – The Systematic Alien Verification for Entitlements program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals.

37. ABIL Global: United Kingdom – This article provides an update on issues for European Union citizens to consider in light of Brexit.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – February 2021

1. USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of a final rule that changed the selection process for cap-subject H-1B petitions. The rule would essentially eliminate the lottery process to give priority to higher wage offerings. The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B filing season this March.

For the upcoming H-1B cap lottery, USCIS will use the current regulations and selection process (random selection) to select registrations submitted during the filing window of March 9 to March 25, 2021. The H-1B lottery process saw significant changes last year, with the implementation of a pre-registration process.

Details:

• “DHS Delays Effective Date of H-1B Selection Final Rule,” Feb. 4, 2021, https://www.uscis.gov/news/alerts/dhs-delays-effective-date-of-h-1b-selection-final-rule
• “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date,” USCIS, Feb. 8, 2021, Federal Register, https://www.federalregister.gov/documents/2021/02/08/2021-02665/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions
• “USCIS Modifies H-1B Selection Process to Prioritize Wages,” USCIS, Jan. 7, 2021, https://www.uscis.gov/news/news-releases/uscis-modifies-h-1b-selection-process-to-prioritize-wages

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2. FY 2022 H-1B Visa Registration Period Starts March 9

U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021. Representatives and registrants must wait until March 9 to create and submit H-1B registrations.

USCIS explained that prospective petitioners (registrants) must use a “registrant” account within myUSCIS to submit their registrations. Registrants will not be able to add more information after they select “I am an H-1B registrant” account type until the initial registration period opens. Petitioners submitting their own registrations will enter their company information as part of their first H-1B registration. Petitioners working with a representative will review company information that the representative enters before submitting the registration for each prospective beneficiary.

Representatives can create an account at any time by using the same kind of account already available to representatives. Representatives who already have a representative account may use that account; they do not need to create a new account, USCIS said.

USCIS has released instructions and a video on how to set up an account and register (link below).

Details:

• “H-1B Electronic Registration Process,” USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (scroll down to “Step-by-Step Instructions” for video)
• “H-1B Visa Registration for 2022 to Begin on Mar. 9, Lottery Results to be Notified by Mar. 31,” Economic Times,

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3. DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May

The Department of Labor’s Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”

Comments may be submitted until February 16, 2021.

Details:

• “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States: Proposed Delay of Effective Date,” Federal Register, Feb. 1, 2021,

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4. USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions

On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.

USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said.

Details:

• “Rescission of 2017 Policy Memorandum PM-602-0142,” USCIS, Feb. 3, 2021, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf

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5. Alejandro Mayorkas Confirmed To Lead Department of Homeland Security

The U.S. Senate confirmed Alejandro Mayorkas as Secretary of Homeland Security on February 2, 2021, making Mr. Mayorkas the first immigrant and first Latino to serve in that role.

Mr. Mayorkas comes from a 30-year career as a law enforcement official and a nationally recognized lawyer in the private sector. He served as Deputy Secretary of the Department of Homeland Security (DHS) from 2013 to 2016, and as Director of U.S. Citizenship and Immigration Services from 2009 to 2013. During his tenure at DHS, he led the development and implementation of Deferred Action for Childhood Arrivals, negotiated cybersecurity and homeland security agreements with foreign governments, led the agency’s response to Ebola and Zika, helped build and administer the Blue Campaign to combat human trafficking, and developed an emergency relief program for orphaned youth following the January 2010 earthquake in Haiti. He also created the Fraud Detection and National Security Directorate.

Mr. Mayorkas began his government service in the Department of Justice, where he served as Assistant United States Attorney in the Central District of California, specializing in the prosecution of white-collar crime. After nearly nine years as a federal prosecutor, he became a U.S. Attorney.

Mr. Mayorkas received a bachelor’s degree with distinction from the University of California at Berkeley and a law degree from Loyola Law School.

Details:

• “Alejandro Mayorkas,” DHS announcement, Feb. 4, 2021, https://www.dhs.gov/person/alejandro-mayorkas
• “Alejandro Mayorkas Nominated To Direct Department of Homeland Security,” Miller Mayer, https://millermayer.com/2020/alejandro-mayorkas-nominated-to-direct-department-of-homeland-security/
• Senate Vote Summary—Mayorkas Confirmation, Roll Call Vote 117^th Congress, 1^st Session, Feb. 2, 2021, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=117&session=1&vote=00012

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6. Biden Signs Immigration-Related Executive Orders

President Biden recently signed several immigration-related executive orders to:

• Develop a strategy to address irregular migration across the southern border and create a humane asylum system. The Biden administration said it will address the underlying causes of migration; collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up asylum seekers’ and migrants’ protection and opportunities closer to home; and ensure that Central American refugees and asylum seekers have access to legal avenues to the United States. The order also directs the Secretary of Homeland Security to review the Migrant Protection Protocols program, and directs a series of actions to restore the U.S. asylum system, “including by rescinding and directing agency review of a host of Trump Administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers.”
• Restore the U.S. refugee admissions program. This order launches administrative reform efforts with a goal of increasing refugee admissions to 125,000 in the first full fiscal year of the Biden administration, and proposing a raise in refugee admissions for this fiscal year after consulting with Congress. Among other things, the order will expand refugee adjudication capacity and review the current Special Immigrant Visa program for Iraqis and Syrians.
• Elevate the role of the White House in coordinating the federal government’s strategy to promote immigrant integration and inclusion. This order includes re-establishing a Task Force on New Americans, and “ensuring that our legal immigration system operates fairly and efficiently.” The order requires agencies to review “recent regulations, policies, and guidance that have set up barriers to our legal immigration system” and “rescinds President Trump’s memorandum requiring family sponsors to repay the government if relatives receive public benefits, instructs the agencies to review the public charge rule and related policies, and begins a review to streamline the naturalization process.”
• Create a task force to reunify families. This task force will work across the U.S. government, with “key stakeholders and representatives of impacted families,” and with “partners across the hemisphere to find parents and children separated by the Trump Administration.” The task force will make recommendations on next steps for reunification, and “to prevent such tragedies from occurring again,” and will report regularly to the President.

Details:

• “Fact Sheet: President Biden Outlines Steps to Reform Our Immigration System by Keeping Families Together, Addressing the Root Causes of Irregular Migration, and Streamlining the Legal Immigration System,” White House, Feb. 2, 2021,
• “Fact Sheet: President Biden to Sign Executive Actions Restoring America’s Place in the World,” White House, Feb. 4, 2021,
• “Biden Signs Immigration Executive Orders and Establishes Task Force to Reunite Separated Families,” CNN, Feb. 2, 2021, https://www.cnn.com/2021/02/02/politics/biden-immigration-executive-orders/index.html

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7. USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction

U.S. Citizenship and Immigration Services (USCIS) will continue to abide by previous filing fee amounts because of preliminary injunctions in ILRC v. Wolf and Nw. Immigrant Rts. Project v. USCIS. USCIS said it is complying with the terms of these orders and “is not enforcing the regulatory changes set out in the Final Rule. USCIS will continue to accept the fees that were in place prior to October 2, 2020, and follow the guidance in place prior to October 2, 2020 to adjudicate fee waiver requests.”

Details:

• Notification of Preliminary Injunction, USCIS, 86 Fed. Reg. 7493, Jan. 29, 2021, https://www.justice.gov/eoir/page/file/1361621/download

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8. Judge May Extend Hold on Deportation Moratorium Until February 23

Judge Drew Tipton of the Southern District of Texas, who recently blocked for 14 days the Biden administration’s 100-day pause on deportations in response to a lawsuit led by Texas Attorney General Ken Paxton, said he is likely to extend the block until February 23, 2021.

The Department of Justice may appeal, but it was unclear as of press time whether it would.

Details:

• “Judge Likely to Extend Hold on Biden’s Deportation Pause Until Late February,” CNN, Jan. 29, 2021, https://www.cnn.com/2021/01/29/politics/immigration-biden-deportations-texas/index.html
• Texas v. United States, Order Granting Plaintiff’s Emergency Application for a Temporary Restraining Order, Jan. 26, 2021, https://www.courthousenews.com/wp-content/uploads/2021/01/tx-deportation-order.pdf

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9. OFLC To Reissue Certain Prevailing Wage Determinations

On January 20, 2021, a U.S. district court issued a modified order governing the manner and schedule in which the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) will reissue certain prevailing wage determinations (PWDs) that were issued from October 8, 2020, through December 4, 2020, under the wage methodology for a related DOL interim rule issued in October, and at the request of employers under the H-1B, H-1B1, and E-3 temporary programs and PERM labor certification program.

OFLC said DOL is taking necessary steps to comply with the modified order issued by the district court. Accordingly, OFLC will reissue certain PWDs issued under the interim final rule in two phases: high priority (within 15 days of receiving the requested list of named plaintiffs from plaintiffs’ counsel) and emergency situations (by March 2, 2021).

Employers that have already submitted a request in response to a December 3, 2020, announcement posted by OFLC have been issued a PWD and do not need to resubmit a second request for reissuance or take other additional action, OFLC said.

Details:

• OFLC announcement, Jan. 22, 2021, https://www.dol.gov/agencies/eta/foreign-labor

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10. February Visa Bulletin Announces Green Card Projections for the Coming Months

The Department of State’s Visa Bulletin for February 2021 included the following information on final action date projections (potential monthly movement) for employment-based green card categories through May. The bulletin notes that determination of the actual monthly final action dates is subject to fluctuations in applicant demand and other variables affecting processing:

Employment First:
Worldwide: Current
China: Up to six months
India: Up to six months

Employment Second:
Worldwide: Current
China: Up to three weeks
India: Up to two weeks

Employment Third:
Worldwide: Current
China: Up to one month
India: Up to three weeks
Mexico: Current
Philippines: Current

Employment Fourth:
Current for most countries
El Salvador, Guatemala, and Honduras: Up to three months
Mexico: Up to one month

Employment Fifth:
Will remain Current for most countries
China: No forward movement
Vietnam: Up to three weeks

Details:

• Visa Bulletin for February 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-february-2021.html

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11. Judge Rules STEM OPT Program Lawful

On January 28, 2021, a U.S. district court judge issued a summary judgment order finding that the STEM OPT (Optional Practical Training for science, technology, engineering, and mathematics students) program is a valid exercise of authority under the Immigration and Nationality Act. This means that both the 12-month OPT and STEM OPT extension programs are lawful.

The plaintiff, Washington Alliance of Technology Workers, has appealed.

Details:

• Memorandum opinion, Washington Alliance of Technology Workers v. DHS,

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12. USCIS Extends Flexibility for Responding to Agency Requests

U.S. Citizenship and Immigration Services (USCIS) announced on January 28, 2021, that it is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.

Included are Requests for Evidence and Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant. In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 60 calendar days from the issuance of a USCIS decision, and the agency made that decision between March 1, 2020 and March 31, 2021, inclusive.

Details:

• USCIS alert, https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-3

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13. President Biden Names Jean King as New Acting Director of EOIR

According to reports, effective January 31, 2021, Jean King is the new Acting Director of the Executive Office for Immigration Review (EOIR). She is a former general counsel for EOIR and most recently served as EOIR’s chief administrative law judge.

Ms. King replaces James McHenry, who led initiatives to close cases much faster and to limit asylum, among others. Greg Chen, director of government affairs for the American Immigration Lawyers Association, said the organization had “deep concerns” about Mr. McHenry, and other Trump administration appointees leading EOIR, “who have stripped judges of fundamental authorities that make it impossible for them to render fair and consistent decisions.” He said Mr. McHenry was the architect of changes that tarnished the credibility and impartiality of the immigration courts and “converted the courts into conveyor belts for rapid deportation.”

The news of Ms. King’s appointment, signaling a policy shift, came in a memorandum from Acting Deputy Attorney General John Carlin to staff and judges. The memo reportedly stated that Ms. King would provide continuity in EOIR leadership until a new director is selected.

Details:

• “Biden Administration Replaces Top Immigration Court Official,” Politico, 27, 2021, https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053
• “Biden Admin. Takes ‘Essential Step’ in Altering Trump-Era Immigration Policy,” Newsweek, Jan. 27, 2021, https://www.newsweek.com/biden-admin-takes-essential-step-altering-trump-era-immigration-policy-1564924

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14. President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order

On January 25, 2021, President Biden issued an executive order, “Ensuring the Future Is Made in All of America by All of America’s Workers.” The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders, including “Buy American and Hire American” (Executive Order 13788, April 18, 2017). U.S. Citizenship and Immigration Services used that executive order as a justification to issue several restrictive immigration policy changes.

Details:

• Biden Executive Order #14005, Jan. 25, 2021, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers

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15. TPS for Syria Extended, Redesignated

The Department of Homeland Security (DHS) announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians. This enables more than 6,700 eligible Syrian nationals (and individuals without nationality who last resided in Syria) to retain their TPS through September 2022, and allows approximately 1,800 additional individuals to file initial TPS applications.

Current beneficiaries as well as Syrian nationals who entered the United States after August 1, 2016, and are otherwise eligible may register. DHS plans to publish a notice in the Federal Register with instructions for re-registration and employment authorization. The DHS Secretary will make the next decision to extend or terminate the designation for Syria on or before July 31, 2022.

Details:

• “Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” DHS Press Release, Jan. 29, 2021, https://www.dhs.gov/news/2021/01/29/acting-dhs-secretary-pekoske-extends-temporary-protected-status-syria

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16. Biden Administration Withdraws Proposed H-4 EAD Rescission Rule From OMB Review

The Biden administration withdrew a proposed rule to rescind the H-4 employment authorization document (EAD) program from review by the Office of Management and Budget. This means that about 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) and their employers no longer need to worry about losing their work authorization.

Details:

• “Proposed H-4 EAD Rule Withdrawn for Review,” National Law Review, https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review
• “Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization,” Proposed Rule, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202010&RIN=1615-AC15

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17. ICE Extends I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibilities in rules related to Form I-9 (Employment Eligibility Verification) compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.

About a year ago, the Department of Homeland Security deferred physical presence requirements associated with the I-9 process. The policy applies only to employers and workplaces operating remotely.

Details:

• “ICE Announces Extension to I-9 Compliance Flexibility,” ICE, Jan. 27, 2021, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-2

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18. ICE Cancels Plans for OPT Employment Compliance Unit

According to reports, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) canceled plans for a new Optional Practical Training (OPT) Employment Compliance Unit. The agency determined that SEVP already addressed many of the same responsibilities.

Details:

• Compliance Whiplash: ICE Establishes, and Then Rescinds, Plan to Create OPT Employment Compliance Unit,” Seyfarth, Jan. 28, 2021, https://www.seyfarth.com/news-insights/compliance-whiplash-ice-establishes-and-then-rescinds-plan-to-create-opt-employment-compliance-unit.html

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19. President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info

On January 25, 2021, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.

U.S. citizens and lawful permanent residents are not subject to the proclamations. Exceptions also include foreign diplomats traveling to the United States on A or G visas; air and sea crew traveling to the United States on C, D, or C1/D visas; and others. For the full list of exceptions, refer to the proclamations.

The Department of State also released a listing with descriptions of previous COVID-19-related Presidential Proclamations that remain in force.

Details:

• “Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease,” Presidential Proclamation, Jan. 25, 2021,
• “Presidential Proclamations on Novel Coronavirus,” Department of State, Jan. 26, 2021, https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-coronavirus.html

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20. President Biden Sets in Motion a Flurry of Immigration Actions in First Days

Newly inaugurated President Joseph R. Biden wasted no time in his first days in office, launching a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals. Below is a summary:

Executive Orders

• “Proclamation on Ending Discriminatory Bans on Entry to the United States.” This order revokes a variety of Trump administration orders and proclamations that prevented certain individuals from the United States, such as those from primarily Muslim countries and from largely African countries, from entering the United States. The new order states that these Trump administration orders and proclamations “are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” The order says that such orders and proclamations also “have undermined our national security,” “jeopardized our global network of alliances and partnerships” and are a “moral blight that has dulled the power of our example the world over,” in addition to separating families and “inflicting pain that will ripple for years to come.” Among other things, the order also states that when visa applicants request “entry to the United States, we will apply a rigorous, individualized vetting system.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/
• “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This order refers to DACA guidance issued in 2012 under the Obama administration that “deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.” The new order directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/
• “Reinstating Deferred Enforced Departure for Liberians.” This order defers through June 30, 2022, with some exclusions, “the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of DED [Deferred Enforced Departure] as of January 10, 2021.” The order also provides for employment authorization for such persons through June 30, 2022, and calls for a notice to be published in the Federal Register. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/reinstating-deferred-enforced-departure-for-liberians/
• “Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction.” Among other things, this order calls for a pause on construction work and funding for the southern U.S. border wall and an assessment of related legal, administrative, and contractual issues. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-termination-of-emergency-with-respect-to-southern-border-of-united-states-and-redirection-of-funds-diverted-to-border-wall-construction/
• “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities.” This order revokes a Trump administration order issued January 25, 2017 (“Enhancing Public Safety in the Interior of the United States”) and states that the Biden administration will “reset the policies and practices for enforcing civil immigration laws to align enforcement” with certain values and priorities, including protecting national and border security, addressing the humanitarian challenges at the southern border, ensuring public health and safety, and adhering to “due process of law as we safeguard the dignity and well-being of all families and communities.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/

Regulatory Actions

• A memorandum to the heads of executive departments and agencies sent by Ronald Klain, President Biden’s chief of staff, states that President Biden is calling for a regulatory freeze pending review of any new or pending rules, with possible exceptions for emergency or urgent situations. The memo states that no rule should be proposed or issued “in any manner,” including by sending a rule to the Office of the Federal Register (OFR), “until a department or agency head appointed or designated by” President Biden reviews and approves the rule. President Biden ordered that rules that have been sent to the OFR but not published in the Federal Register to be immediately withdrawn. For rules that have been published or issued in any manner but have not yet taken effect, President Biden ordered department and agency heads to “consider postponing the rules’ effective dates for 60 days” so they can be reviewed. The memo also calls for consideration of opening a 30-day comment period. The memo calls for the Office of Management and Budget director to implement the regulatory review. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/

Legislative Proposals

• President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:
• Provide worker protections and improvements to the employment verification process.
• Clear employment-based visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
• Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
• Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
• Reform family-based immigration.
• Increase diversity visas from 55,000 to 80,000.
• Promote immigrant and refugee integration and citizenship.
• Prioritize border controls that include technology and infrastructure improvements.
• Manage the border and provide various resources to protect border communities.
• Crack down on criminal organizations.
• Address underlying regional causes of migration.
• Reform immigration courts.
• Support asylum seekers and other vulnerable populations.
• Change the word “alien” to “noncitizen” in U.S. immigration laws.

It will be interesting to follow these myriad proposals and actions as they make their way through the agencies, the regulatory and legislative processes, and the courts. Some Republicans have already signaled their resistance to aspects of the legislative proposals. Sen. Lindsey Graham (R-SC), for example, said comprehensive immigration reform “is going to be a tough sell given this environment, but doing DACA, I think, is possible.” Stay tuned.

Details:

• “Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize Our Immigration System,” Biden-Harris Transition Press Release, Jan. 20, 2021, https://cdn.vox-cdn.com/uploads/chorus_asset/file/22246670/Fact_Sheet__America_s_Citizenship_Act_of_2021.pdf
• “Senate Republicans Throw Cold Water on Biden’s Immigration Proposal,” https://www.nbcnews.com/politics/immigration/senate-republicans-throw-cold-water-biden-s-immigration-proposal-n1255232

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21. DHS Pauses Certain Removals for 100 Days

The Department of Homeland Security (DHS) announced on January 20, 2021, that it is pausing for 100 days removals for certain noncitizens ordered deported, with exceptions. DHS said the action is intended “to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety” and to “allow DHS to ensure that its resources are dedicated to responding to the most pressing challenges that the United States faces.” Among those issues, a press release states, are “immediate operational challenges at the southwest border in the midst of the most serious global public health crisis in a century.”

DHS said it will “continue to enforce our immigration laws” throughout “this interim period.” The memo calls for a review of policies and practices related to immigration enforcement.

Meanwhile, Ken Paxton, Texas Attorney General, sued the Biden administration over the new policy to pause removals, stating that the “unlawful reversal” “ignored basic constitutional principles and violated [the government’s] written pledge” made in the last weeks of the Trump administration “to work cooperatively with the State of Texas to address shared immigration enforcement concerns.”

Details:

• “Acting Secretary of DHS Directs a Review of Immigration Enforcement Practices and Policies,” DHS press release, Jan. 20, 2021, https://www.dhs.gov/news/2021/01/20/acting-secretary-dhs-directs-review-immigration-enforcement-practices-and-policies
• “Memorandum From Acting Secretary Pekoske on Immigration Enforcement Policies,” https://www.dhs.gov/sites/default/files/publications/21_0120_enforcement-memo_signed.pdf
• Texas v. United States, https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2021/Press/1%20Complaint_0.pdf
• “Texas Sues Biden Administration Over 100-Day Deportation ‘Pause,’ ” Washington Post, https://www.washingtonpost.com/national/texas-biden-lawsuit-ice-deportations/2021/01/22/4548eec2-5cea-11eb-aaad-93988621dd28_story.html (subscription)

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22. DOS Announces Reconsideration of Visa Denials Based on Travel Bans

On January 22, 2021, the Department of State (DOS) announced that it will undertake a review “to ensure that individuals whose immigrant visa applications were denied on the basis of the suspension and restriction on entry imposed by P.P. [Presidential Proclamations] 9645 or 9983 may have their applications reconsidered.” In addition to considering whether to reopen such applications, the agency will consider whether to charge an additional fee for processing them and will develop a plan to expedite their consideration. The review is taking place in response to President Biden’s proclamation signed on January 20, 2021, ending travel restrictions under earlier Trump administration proclamations that suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

The DOS announcement also noted:

Pending the Department’s review, under current Department regulations Immigrant visa (IV) applicants who were previously refused due to either P.P. 9645 or 9983 and were determined not to qualify for a waiver before January 20, 2020, must submit a new visa application (DS-260) and pay a new visa application processing fee. IV applicants refused due to either P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated, or who were determined not to qualify for a waiver within one year of January 20, 2021, and who also request their local embassy or consulate to resume processing on their case within one year of January 20, 2021 may be able to resume processing of their case without submitting a new application or paying a new visa application processing fee. Embassies and consulates will prioritize the adjudication of applications for those individuals who remain in the waiver process.

Nonimmigrant visa applicants who were previously refused due to either P.P. 9645 or 9983 and did not qualify for a waiver will need to submit a new visa application (DS-160) and pay a new visa application processing fee if they wish to reapply for a visa.

The announcement warns that processing may be affected by COVID-19 pandemic-related restrictions at U.S. embassies and consulates on a post-by-post basis.

Details:

• “Rescission of Presidential Proclamations 9645 and 9983,” Department of State, Jan. 22, 2021, https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html

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23. President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers

On January 21, 2021, President Biden signed an executive order to implement public health measures “consistent with CDC [Centers for Disease Control and Prevention] guidelines on public modes of transportation and at ports of entry to the United States.”

Among other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers. The order calls for an assessment of alternative measures (e.g., testing, self-quarantining) for travelers entering the United States from countries where COVID-19 tests are inaccessible, “particularly where such inaccessibility of tests would affect the ability of United States citizens and lawful permanent residents to return to the United States.”

The order also calls for diplomatic outreach to the governments of Canada and Mexico regarding public health protocols for land ports of entry.

Details:

• “Executive Order on Promoting COVID-19 Safety in Domestic and International Travel,” Jan. 21, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-promoting-covid-19-safety-in-domestic-and-international-travel/

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24. Census Bureau Director Under Trump Resigns Amid Flurry of Accusations re Data on Undocumented Immigrants

The U.S. Census Bureau announced on January 16, 2021, that it is complying with a court order in a case brought by the National Urban League against former President Trump’s orders to exclude data on undocumented immigrants from the 2020 Census. Specifically, the Bureau instructed its staff not to finalize, report, or publicly disclose any reports, estimates, or data relating to such orders before the change of administration, and to provide detailed notice before releasing any such information that is finalized. This action also followed complaints about how the Bureau’s director was handling data on undocumented immigrants.

According to reports, apportionment data may not be available until March 2021, exceeding the statutory deadline of December 31, 2020. A memo issued January 12, 2021, by the Commerce Department’s Office of Inspector General (OIG), the latest director of the U.S. Census Bureau under the Trump administration, stated that Director Steven Dillingham had been rushing to produce a technical report that would include data on documented and undocumented persons in the United States before the end of the Trump administration. Whistleblowers complained that they had not had “sufficient time to conduct their normal data quality checks” and expressed concern that the data required were “not ready for publication.” The Commerce Department’s memo further stated that Dr. Dillingham “inquired into a financial reward for speed on this directive.” The OIG asked for information on various aspects of the report and the processes and timelines for producing it.

Subsequently, Dr. Dillingham resigned effective January 20, 2021, and Politico pronounced “dead” the Trump administration’s push to exclude the undocumented from the Census.

Details:

• “Census Bureau Statement on National Urban League Case 21-Day Stay,” https://www.census.gov/newsroom/press-releases/2021/national-urban-league-21-day-stay.html
• National Urban League v. Ross, https://www.census.gov/content/dam/Census/newsroom/press-kits/2021/456-stipulation-and-order-granting-stay.pdf
• “Request for Information Pursuant to the Inspector General Act of 1978, as Amended,” Office of Inspector General, U.S. Department of Commerce, Jan. 12, 2021, https://www.oig.doc.gov/OIGPublications/OIG-21-019-M.pdf
• “Census Bureau Says Trump’s Push to Exclude Undocumented is Dead,” Politico, https://www.politico.com/news/2021/01/16/census-data-released-biden-trump-undocumented-immigrants-459893
• “Director’s Blog: Farewell,” Statement of Dr. Steven Dillingham, Director, U.S. Census Bureau, Jan. 18, 2021, https://www.census.gov/newsroom/blogs/director/2021/01/dillingham-farewell.html

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25. Trump Grants Last-Minute Deferred Enforced Departure to Certain Venezuelans

On January 19, 2021, former President Trump announced Deferred Enforced Departure (DED) for certain Venezuelans due to the “deteriorative condition within Venezuela, which presents an ongoing national security threat to the safety and well-being of the American people.” The memo, published in the Federal Register on January 25, 2021, directs the deferral for 18 months of the removal of Venezuelans meeting certain requirements.

Details:

• “Deferred Enforced Departure for Certain Venezuelans,” Federal Register, https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01718.pdf
• “Trump Grants Venezuelans Temporary Legal Status on His Way Out,” Politico, Jan. 19, 2021, https://www.politico.com/news/2021/01/19/trump-venezuela-temporary-legal-status-460524

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26. Biden Administration Poised to Introduce Immigration-Related Executive Orders; Democrats Prepare Legislation

According to reports, the Biden administration plans to introduce executive orders and push for immigration legislation “immediately” after taking office. After a related conference call, commenters called the plans “groundbreaking,” “bold,” and “aggressive.” Congressional Democrats and advocates have been working on a bill. Ideas in the mix include a pathway to U.S. citizenship for an estimated 11 million undocumented people, permanent residence for people with temporary protected status, and an extension of the Deferred Action for Childhood Arrivals (DACA) program and permanent residence for DACA recipients.

President-elect Biden was reported as noting that impeachment proceedings in the Senate may slow progress on legislation, along with the need to pass Covid-19 pandemic relief. Immigration reform legislation has been notoriously difficult to pass. It is unclear whether the legislation will be introduced in one comprehensive sweep or broken down into smaller bills, or some of both. Litigation could also have an impact on the Biden administration’s plans.

Details:

• “Democrats Ready Immigration Push for Biden’s Early Days,” Politico, https://www.politico.com/news/2021/01/15/biden-immigration-plans-459766
• “Biden Plans Early Legislation to Offer Legal Status to 11 Million Immigrants Without It,” Los Angeles Times, https://lat.ms/3bNnKnM
• “Biden Plans ‘Roughly a Dozen’ Day One Executive Actions: Aide,” Reuters, https://reut.rs/2M1tX4g
• “Trump’s Executive Orders on Immigration Could Be Tough to Undo,” Daily Labor Report, Bloomberg Law, https://news.bloomberglaw.com/daily-labor-report/trumps-executive-orders-on-immigration-could-be-tough-to-undo
• “The Biden Plan for Securing Our Values as a Nation of Immigrants,” https://joebiden.com/immigration/

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27. Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship

The Departments of Labor (DOL) and Homeland Security (DHS) issued final rules making substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers. Below are selected highlights of the two rules and related guidance.

DOL final rule. On January 14, 2021, DOL published a final rule changing the prevailing wage methodology for several immigrant and nonimmigrant foreign worker programs. The final rule is effective March 15, 2021, but filers will not be required to use the revised prevailing wage methodology until July 1, 2021.

Among other things, the final rule changes the calculation of prevailing wages for jobs requiring certain employment-based immigrant visas or for jobs in the PERM, H-1B, H-1B1, and E-3 visa programs for which employers seek labor certification. The related interim final rule, issued in October 2020, was scuttled by court decisions. DOL said it made changes to the interim rule in response to comments. For example, the agency adjusted the Level I and Level IV wages downward to the 35^th percentile and 90^th percentile, respectively, and is implementing changes to how it uses data in the H-1B and PERM programs “that will further reduce the incidence of inappropriately inflated wages identified by commenters.” DOL also is adopting a “phase-in approach” to give employers and workers time to adapt.

DHS final rule. On January 15, 2021, DHS released a final rule on its website that it has sent for publication in the Federal Register. The rule amends its regulations, for petitions filed on or after the effective date of the regulation, to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between an H-1B petitioner and a beneficiary for the purposes of qualifying as a “United States employer.” DHS said it is not finalizing other provisions of the related interim final rule published in the Federal Register on October 8, 2020, and that it “plans to pursue future rulemaking for those provisions,” which were vacated by the U.S. District Court for the Northern District of California on December 1, 2020.

The final rule adopts a “common-law test” for determining which entities have an employment relationship with an H-1B worker. Under the common law, DHS explained, “multiple entities can have an employment relationship with a worker simultaneously.” Under a third-party placement arrangement, therefore, it is possible that the third-party entity would also be considered an employer of the H-1B worker and would be required to file a petition for the H-1B worker. DHS said that because adoption of the rule “may require adjustments to business practices on the part of employers, including third-party common-law employers,” the agency determined that it is appropriate for the rule to take effect 180 days from publication.

Related guidance. DOL’s Office of Foreign Labor Certification (OFLC) revised its interpretation of regulations concerning which employers of H-1B workers must file a Labor Condition Application (LCA). Under the interpretation announced on January 15, 2021, all common-law employers of H-1B workers, including any secondary employers meeting the common-law test, must file an LCA.

The OFLC bulletin explained that H-1B employment frequently involves primary employers, such as staffing agencies, that petition to hire H-1B workers, as well as secondary employers, such as staffing agencies’ clients, where the H-1B workers are assigned to work. Secondary employers must now comply with the statutory and regulatory requirements of the H-1B program if they are common-law employers of the H-1B worker, OFLC said.

Also, on January 15, 2021, DOL released a bulletin providing guidance to Wage and Hour Division field staff regarding H-1B program obligations for common-law employers “in light of interpretive changes being made” by DHS and DOL.

Litigation is expected.

Details:

• DOL final rule,
• DHS final rule (not yet published in the Federal Register), https://www.dhs.gov/sites/default/files/publications/21_0115_uscis_strengthening-final-rule.pdf
• “DHS and DOL Team Up on H-1B Visas Against IT Services Companies,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/01/18/dhs-and-dol-team-up-on-h-1b-visas-against-it-services-companies/?sh=417c765547e9
• “Labor Department Raises Mandatory Wages for H-1B Workers,” India West,
• “U.S. Agency Issues Final Wage Rules for H-1Bs and Green Card Holders, Higher Wages to Apply in a Phased Manner,” Times of India,
• “DOL H-1B Visa Wage Rule: Donald Trump’s Bad Parting Gift to Immigrants,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/01/13/dol-h-1b-visa-wage-rule-donald-trumps-bad-parting-gift-to-immigrants/?sh=1a069506774f (available by registration)
• “Trump Administration Moves Ahead With H-1B Pay Rule Over Silicon Valley’s Objections,” https://www.sfchronicle.com/business/article/Trump-administration-moves-ahead-with-H-1B-pay-15865554.php
• “OFLC Announces Revised Interpretation and Issues New Guidance Clarifying Requirements Under the H-1B Program,” OFLC, Jan. 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• “H-1B Program Obligations for Common-Law Employers,” DOL Field Assistance Bulletin, Jan. 15, 2021, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_1.pdf

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28. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.

For 2021, the Departments agreed to:

• Add the Philippines to the H-2B list;
• No longer designate Samoa and Tonga as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
• No longer designate Mongolia as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program.

Details:

• DHS Federal Register notice,
• DHS announcement, https://www.uscis.gov/news/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs

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29. Labor Dept. Updates Implementation of Final Rule on H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations in Response to Court Order

In response to a court order, the Department of Labor (DOL) made changes to implementation of its final rule on adverse effect wage rate (AEWR) methodology for non-range occupations. On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL, enjoining the agency from implementing its final rule, issued November 5, 2020, on AEWR methodology for the temporary employment of H-2A nonimmigrants in non-range occupations, and ordering DOL to operate under the 2010 rule.

On January 12, 2021, the court issued a supplemental order requiring DOL to publish the AEWRs for 2021 by February 25, 2021, using the methodology set forth in the 2010 rule, and to make those AEWRs effective upon their publication. Additionally, the court ordered DOL to notify all state workforce agencies, employers, and the general public that the AEWRs in effect on December 20, 2020, will remain in effect during the interim period until DOL publishes 2021 AEWRs in the Federal Register.

Additionally, the court reserved decision on whether an award of backpay is warranted based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs. DOL reminded employers to record the names and permanent home addresses of all H-2A workers who may later be entitled to backpay.

Details:

• “OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations Final Rule; Compliance with District Court Order,” January 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor

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30. Labor Dept. Announces Pending H-2A Final Rule

The Department of Labor (DOL) announced a final rule pending publication that mandates electronic filing of job orders and applications. DOL said the action is “designed to bring the
H-2A application process into the digital era, by harnessing the power of the FLAG electronic filing system to share information with other federal agencies like the Department of Homeland Security while also sharing information with the State Workforce systems and domestic farmworkers.”

Additionally, the final rule will include the ability to stagger the entry of workers into the United States over a 120-day period and will allow agricultural employers to file a single application for different dates of need instead of multiple applications.

The agency said it expects the final rule to be published shortly, with a 30-day delayed effective date from the date of publication.

Details:

• “U.S. Department of Labor Announces a Final Rule Which Modernizes and Improves the H-2A Temporary Agricultural Program,” January 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Final rule draft submitted to the Federal Register, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A-2020-final-rule-1_8_2021-Clean-with-disclaimer.pdf

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31. SEVP Announces New OPT Employment Compliance Unit

The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training. The unit will publish a report at least annually on its findings, with the first report to be published on ICE.gov by July 31, 2021.

The unit will be responsible for “recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure that the OPT programs operate in a lawful manner at U.S. worksites.” The unit will also “evaluate whether employers are adhering to the attestations and training plans required under the OPT extension, which will include on-site visitation.”

Details:

• “Broadcast Message: New SEVP Unit to Oversee Employment Compliance in the OPT Programs and Report on Impact on U.S. Workers,” U.S. Immigration and Customs Enforcement, Jan. 13, 2021, https://www.ice.gov/doclib/sevis/pdf/bcm2101-02.pdf

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32. U.S. To Require Negative COVID-19 Tests From International Arrivals

Effective January 26, 2021, all airline or other aircraft passengers arriving in the United States from any foreign country, with a few exceptions, must present: (1) a negative pre-departure test result for SARS-CoV-2, the virus that causes COVID-19 (Qualifying Test); or (2) written or electronic documentation of recovery from COVID-19 after previous infection in the form of a positive viral test result and a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel (Documentation of Recovery).

Details:

• “Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of Recovery From COVID-19 for All Airline or Other Aircraft Passengers Arriving Into the United States from Any Foreign Country,” CDC, https://www.cdc.gov/quarantine/pdf/global-airline-testing-order_2021-01-2_R3-signed-encrypted-p.pdf
• “Test for Current Infection,” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html
• “COVID-19: U.S. To Require Negative Virus Tests From International Air Travelers,” New York Times, https://www.nytimes.com/live/2021/01/12/world/covid-19-coronavirus#the-us-will-require-negative-virus-tests-from-international-passengers-arriving-by-air

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33. DHS Extends Canada-U.S.-Mexico Border Restrictions

The Department of Homeland Security (DHS) extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021. The restrictions suspend entry via land border, ferry crossing, passenger rail, or coastal ports of entry from Canada and/or Mexico for pleasure boat travel of immigrants and nonimmigrants, including any travel that is not deemed essential. The restrictions do not apply to air, freight rail, or sea travel.

The determination of essential travel is at the discretion of the port of entry and exceptions to the restrictions include U.S. citizens and lawful permanent residents returning to the United States, individuals traveling for medical purposes and to attend educational institutions, individuals traveling to work in the United States, and other reasons.

Details:

• “Temporary Travel Restrictions to Land Border and Ferries Between the United States, Canada and Mexico,” U.S. Customs and Border Protection, https://help.cbp.gov/s/article/Article-1694?language=en_US

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34. USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities

U.S. Citizenship and Immigration Services (USCIS) announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox. The agency said a variety of factors were to blame, including “COVID-19 restrictions, an increase in filings, current postal service volume and other external factors.” Among other things, USCIS said there may be “significant delays” in receipt notices for Form I-765, Application for Employment Authorization, based on categories related to F-1 students.

USCIS said its lockbox workforce was working extra hours and redistributing its workload to minimize delays. “We do not anticipate any receipting delays that would result in a payment that is past its validity date,” the agency said. For those who have not yet filed an application, USCIS recommends filing online if possible, creating a USCIS online account to check case status, and completing a Form G-1145, E-Notification of Application/Petition Acceptance to request a text message and/or email when USCIS accepts the form via a lockbox.

Details:

• USCIS alert, https://www.uscis.gov/news/alerts/uscis-lockbox-updates

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35. Judges Block Trump Asylum Rule, Refugee Local Placement Order

On January 8, 2021, a U.S. judge in the Northern District of California blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. Judge James Donato blocked the rule on the basis that Chad Wolf, whom President Trump appointed as Acting Secretary of Homeland Security, did not have the authority to impose rules because he was not lawfully appointed. Noting that limiting the decision “would result in a fragmented and disjointed patchwork of immigration policy,” Judge Donato said the temporary restraining order applies nationwide.

Judge Donato said the government “has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”

Asylum at the U.S.-Mexico border is otherwise also limited due to COVID-19 pandemic-related and other reasons. President Trump reportedly withdrew his nomination of Mr. Wolf to serve as Secretary of Homeland Security after Mr. Wolf condemned those who rioted and invaded the U.S. Capitol and said he supported an orderly transition to the Biden administration.

In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.

Details:

• “Judge Blocks Dramatic Overhaul of U.S. Asylum System From Taking Effect,” Reuters, https://reut.rs/3s40ZBs
• S. Judge Blocks Trump Administration’s Sweeping Asylum Rules,” Associated Press, https://apnews.com/article/donald-trump-immigration-courts-local-governments-3d6ab9e79153e67d974cee1bf592862f

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36. SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA

The Systematic Alien Verification for Entitlements (SAVE) program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals (DACA).

SAVE noted that applicants may present an unexpired Form I-766, Employment Authorization Document (EAD), in combination with an I-797, Extension Notice, issued by USCIS showing that their deferred action has been extended for one year. This unexpired EAD must contain a Category code of C33 and be issued on or after July 28, 2020, SAVE said, adding that SAVE user agencies may need to institute additional verification in these situations.

Details:

• USCIS notice, https://www.uscis.gov/save/whats-new/verifying-applicants-extended-deferred-action-under-daca

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37. ABIL Global: United Kingdom

This article provides an update on issues for European Union citizens to consider in light of Brexit.

Issues for EU Citizens to Consider

European Union (EU) (and European Economic Area and Swiss) citizens who have already been resident in the United Kingdom (UK) are expecting no major issues after the Brexit transition period ended on December 31, 2020. So long as they were resident by the end of 2020, they can apply to the EU Settlement Scheme before the deadline of June 30, 2021. But there are several issues to be aware of regarding absences from the UK for those with pre-settled status and those relying on permanent residence to naturalize as British citizens.

Absences for those with pre-settled status. EU citizens who have pre-settled status must apply for settled status after 5 years in the UK. Pre-settled status is not extendable, so it is important that the residence requirements be met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker. Those with pre-settled status should not be absent for more than 6 months in any 12-month period. A single period of absence of up to 12 months is permitted for an “important” reason, which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training, or an overseas posting.

Given the circumstances, the obvious question is why absences due to the COVID-19 pandemic have not been included in the EU Settlement Scheme rules and guidance. Elsewhere in the rules, absences due to the pandemic have been covered. For example, travel disruption due to the pandemic because there were no available flights or the visa application centers were closed has been a ground for absences above the usual threshold to be allowable on an exceptional basis where they can be evidenced.

The Home Office has advised that absences over 6 months for those with pre-settled status could be permitted on a discretionary basis if:

• The EU citizen, or a person with whom they are living, is suffering from COVID-19 and they are either too ill to travel or forcibly in quarantine for public health reasons; or
• There were no available flights to the UK and in essence the individual has been stranded overseas.

A general reluctance to return to the UK is not expected to be sufficient. As a result of this policy, EU citizens with pre-settled status who have had or may shortly have absences of more than 6 months in a 12-month period that are not very clearly for an important reason must consider:

• Traveling to the UK before they reach 6 months of absence from the UK; or
• Reapplying from outside the UK for pre-settled status before they reach 6 months of absence; or

Relying on permanent residence for naturalization. EU citizens who have been granted a permanent residence document under EU law (not from the EU Settlement Scheme) and who have held permanent residence for 12 months can normally apply to naturalize as a British citizen. Plus, some applicants’ permanent residence will be backdated, meaning they can apply to naturalize right away.

EU citizens should be aware, though, of a rule change as of January 1, 2021. For applications submitted in the new year:

• If the applicant only has a permanent residence document and does not have settled status, they can continue to rely on the permanent residence document for a naturalization application. They should ensure that they do not become an overstayer on July 1, 2021, by applying for settled status (from the EU Settlement Scheme) before that date if their naturalization application remains outstanding; and
• If, on the other hand, the applicant has both a permanent residence document and settled status, as of January 1, 2021, they cannot rely on the permanent residence document and instead must wait until they have held settled status for 12 months.

Details:

• New UK immigration system FAQs, https://www.kingsleynapley.co.uk/services/department/immigration/the-uks-new-immigration-system-what-you-need-to-know

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New Publications and Items of Interest

Webinar for refugee and asylee service providers. The Immigrant & Employee Rights Section (IER) of the Department of Justice’s Civil Rights Division announced a webinar, “Refugees’ and Asylees’ Right to Work,” to be held February 11 (register at https://adobe.ly/3qSpv7r) and 17 (register at https://adobe.ly/3sQwWO7). The two presentations are identical. The free webinar will educate refugees, asylees and the professionals working with them about workers’ rights under the antidiscrimination provision of the Immigration and Nationality Act, and special issues facing refugees and asylees related to this law. IER representatives will describe how this office assists refugees and asylees when employers discriminate against them based on their national origin or citizenship status. Attendees also will learn how to identify possible discrimination in the process of verifying a worker’s authorization to work in the United States. IER representatives will discuss free resources relating to this law, including for individuals with limited English proficiency, such as the IER’s worker hotline. In addition to providing the public information on the law that IER enforces, IER’s hotline may be able to assist when an employer: rejects a refugee’s I-94 as a valid Form I-9 document, does not allow a refugee to start work without a Social Security number, rejects an asylee’s or refugee’s driver’s license and Social Security card as valid I-9 documentation, or rejects an Asylee I-94 as a valid List C document for I-9 verification.

Brookings Institution on ways the Biden administration can improve the employment-based immigration system without Congress. In a broad review of immigration policy proposals, a new report from the Brookings Institution identifies four areas for improvement for the Biden administration: removing impediments to immigration, improving the predictability of the immigration system, resuming the use of discretion by immigration officers, and expanding customer service. The new report and proposal guide offer a map to immigration policy proposals from numerous organizations. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/ Client flyer on Biden’s immigration actions. The American Immigration Lawyers Association has released a flyer suitable for distribution to clients, “The Biden Immigration Policy.” The flyer summarizes key immigration orders President Biden has issued since taking office on January 20, 2021, and the outlook for immigration legislation and other promised actions. https://www.aila.org/File/Related/flyer-biden-FINAL2.pdf H-1B denial rates for FY 2020 and impact of court decisions. The National Foundation for American Policy has released a policy brief, “H-1B Denial Rates for FY 2020 and the Impact of Court Decisions.” Among other things, the policy brief states that the Trump administration “managed to carry out what judges determined to be unlawful policies for nearly four years. Those policies resulted in high denial rates for H-1B petitions for initial employment of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015. The FY 2020 denial rate would have been much higher without the recent court rulings.” https://nfap.com/wp-content/uploads/2021/01/H-1B-Denial-Rates-For-FY-2020-and-the-Impact-of-Court-Decisions.NFAP-Policy-Brief.January-2021-2.pdf EOIR interactive Policy Manual. The Executive Office for Immigration Review (EOIR) announced on January 13, 2021, the release of its first interactive Policy Manual, “the culmination of a multi-year project that represents the agency’s first comprehensive review of its policies.” EOIR said the effort involved the “dedication of many employees to identify redundancies, clarify ambiguities, eliminate surplusage, and update policies to reflect current law and practice.” It also includes the first Office of the Chief Administrative Hearing Officer Practice Manual, all agency policy memoranda, and the Immigration Court and Board of Immigration Appeals Practice Manuals. https://www.justice.gov/eoir/eoir-policy-manual COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

• Coronavirus.gov: Primary federal site for general coronavirus information
• USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
• CDC.gov/coronavirus: Centers for Disease Control and Prevention information

• American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
• NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

• https://www.dhs.gov/coronavirus-news-updates
• https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

• USCIS: USCIS.gov/coronavirus
• ICE:

• Overview and FAQs: https://www.ice.gov/coronavirus
• Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
  pdf

• CBP:

• Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
• Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

• Office of Foreign Labor Certification:

• OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
• COVID-19 FAQs:
  • Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
  • Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
  • Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

State Department: https://www.state.gov/coronavirus/

• Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
• Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
• J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

• Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

Agency Twitter Accounts

• EOIR: @DOJ_EOIR
• ICE: @ICEgov
• Study in the States: @StudyinStates
• USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) and Vic Goel (bio: https://www.abil.com/lawyers/lawyers-goel.cfm?c=US) were quoted by Forbes in “Ending Unlawful Trump H-1B Visa Policies Caused Denials to Plummet.” Mr. Goel said the lower H-1B denial rates seen in the fourth quarter of FY 2020 have continued into the first quarter of FY 2021. “Following the decision and settlement in the ITServe Alliance case that caused the rescission of the [USCIS] 2010 and 2018 memos, H-1B approval rates improved substantially,” he said. Ms. Butte noted that she observed a much lower rate of denials and fewer Requests for Evidence in late FY 2020. https://www.forbes.com/sites/stuartanderson/2021/01/28/ending-unlawful-trump-h-1b-visa-policies-caused-denials-to-plummet/?sh=69ff467f6211 (subscription)

Ms. Butte was quoted by Forbes in “Pardons May Have Revealed Insincerity of Trump Immigration Policies.” Mr. Goel and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) also contributed to the article. Ms. Butte said, “The Trump administration failed to show that employment-based immigration programs had statistically significant levels of fraud. From the data presently available it does not appear the levels are any higher than they were when the Bush administration created the Fraud Detection and National Security Directorate for employment-based immigration. The Trump changes in policy increased costs for employers who needed the talent and desperately wanted to follow the rules to get it. It also created anxiety and harmed the workers who wanted to earn a living and contribute to the U.S. economy. Trump administration policies didn’t prevent fraud but discouraged employers and workers from participating in these immigration categories, given the barriers to entry and continued participation. That seems to have been the real purpose of these initiatives.” https://www.forbes.com/sites/stuartanderson/2021/01/25/pardons-may-have-revealed-insincerity-of-trump-immigration-policies/?sh=6eb00cd550d1 (subscription)

Klasko Immigration Law Partners, LLP, published a blog posting: “How to Work in the U.S.: A Brief Guide to Employment Based Immigration.” https://www.klaskolaw.com/h-1b-employment/how-to-work-in-the-u-s-a-brief-guide-to-u-s-employment-based-immigration/

Klasko Immigration Law Partners, LLP, has released a new podcast episode, “EB-5 Visa Program During COVID-19,” in its “Statutes of Liberty” series.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was interviewed by China Global TV about President Biden’s immigration executive orders (video)

Mr. Kuck is co-counsel for a putative class of U.S. visa holders and applicants, including high-skilled and extraordinary ability, who asked a California federal judge to order U.S. government officials to resume employment-based visa processing. Mr. Kuck said that by sustaining former President Trump’s proclamation to halt visa processing for many immigrants, “you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States.” Characterizing the Trump administration’s efforts as “king-like enforcement of a royal decree,” Mr. Kuck said Mr. Trump “used a health crisis to carry out an illegitimate, nativist agenda.” https://www.law360.com/immigration/articles/1347823/visa-seekers-ask-judge-to-halt-trump-s-nativist-agenda-

Mr. Kuck was quoted by Law360 in “Visa Seekers Ask Judge To Halt Trump’s ‘Nativist Agenda.’ ” Mr. Kuck, co-counsel for a putative class of U.S. visa holders and applicants, told a U.S. district judge during a preliminary injunction hearing that “[b]y sustaining this proclamation further, you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States. The ex-president used a health crisis to carry out an illegitimate, nativist agenda.” https://www.law360.com/immigration/articles/1347823/visa-seekers-ask-judge-to-halt-trump-s-nativist-agenda- (registration required)

Mr. Kuck and Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) were quoted by the Times of India in “U.S. Agency Issues Final Wage Rules for H-1Bs and Green Card Holders, Higher Wages to Apply in a Phased Manner.” Mr. Kuck said, “We will be amending our lawsuit to seek to enjoin this lame attempt to fix its prior illegal regulation. We remain confident that this regulation will never see the light of day as written.” Mr. Mehta said, “The new rule acknowledges that an abrupt transition to the new wage levels could be disruptive to the economy and detrimental to U.S. employers, so the DOL will gradually introduce the new wages over a period of a year and a half, with the first increase set to take place on July 1, 2021. In addition, for H-1B workers who were the beneficiaries of approved I-140 applications (for green cards) as of October 8, 2021 and are caught in the backlogs, the phase-in period for the increased wages is extended over a three and a half year period.” He also said, “Despite the phase-in, the increased wages will be artificial and will not be consistent with market wages, and the new rule is a continuation of the nonsensical wage rule that was previously blocked by the courts. I expect this rule to be challenged too as there is no basis in [immigration law] to calculate prevailing wages to such high levels as the DOL has done. Prevailing wages must reflect the market wages that are ordinarily paid to U.S. workers in the same occupation.”

Mr. Mehta was quoted by the Tennessee Tribune in “Biden Starts to Unwind Trump Rules and Advocates Are Happy.” Mr. Mehta said, “For example, if somebody has been sponsored on an H-1B visa and the employer files for a green card on behalf of a person born in India, it would take several decades before that person gets a green card.” He said that in the family categories, it could take 10 to 20 years for family members of U.S. citizens to immigrate. “It’s ridiculous. That’s not the way Congress intended it to be when the last reform with immigration numbers happened in the 1990 Act. They were thinking that 2- to 3-year waits would be too long but now we have waits that stretch into several decades.” https://tntribune.com/biden-starts-to-unwind-trump-rules-and-advocates-are-happy/

Mr. Mehta chaired several recent events:

• “Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas,” Practising Law Institute, Feb. 4, 2021 (webcast), https://www.pli.edu/programs/basic-immigration-law
• “Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021,” Practising Law Institute, Feb. 5, 2021 (webcast), https://www.pli.edu/programs/asylum-juvenile-immigration-relief

Mr. Mehta was featured and quoted by India West in “Immigration Advocates Cheer as President Biden Launches Bold Initiatives for Immigration Reform.” Mr. Mehta said, “The numbers of green cards allotted each year are woefully inadequate.” He added that the wait could be lessened by eliminating the per-country cap that currently allots only 7 percent of all employment-based visas per year. India, for example, “gets less than 10,000 green cards per year, while 800,000 wait in the queue,” he said. https://bit.ly/3tymlYw

Mr. Mehta spoke at “President Biden’s Bold Immigration Plan: What Can Immigrants Expect?” The briefing was sponsored by Ethnic Media Services. Link to broadcast (video): https://drive.google.com/file/d/1ZZAbwMtXL4ZGQS0-8x8gwE1gP9fgZWzV/view

Mr. Mehta spoke at an American Immigration Lawyers Association seminar, “Preparing for
H-1B Cap Season 2021,” on January 26, 2021. https://agora.aila.org/Conference/Detail/1848

Mr. Mehta has authored a new blog posting: “The Rescission of Trump’s Buy American Hire American Will Benefit Immigrants and America.” http://blog.cyrusmehta.com/2021/01/the-rescission-of-trumps-buy-american-hire-american-will-benefit-immigrants-and-america.html

Mr. Mehta‘s blog, “President Biden Ushers in New Hope on Immigration After Trump’s Destructive and Xenophobic Four Years,” was included in LexBlog’s Top 10 in Law Blogs. Top 10 list: https://www.lexblog.com/2021/01/29/top-10-in-law-blogs-tesla-law-suit-climate-change-inaction-investor-fraud/. Mr. Mehta’s blog, co-authored with Kaitlyn Box: https://www.lexblog.com/2021/01/25/president-biden-ushers-in-new-hope-on-immigration-after-trumps-destructive-and-xenophobic-four-years/

Mr. Mehta was quoted by the Times of India in “White House Freezes Recent Draconian Immigration Rules. Mr. Mehta said, “As the H-1B rule that sought to replace the lottery system with one based on wages will be frozen for 60 days, it probably will not impact the upcoming H-1B lottery process.” https://timesofindia.indiatimes.com/world/us/white-house-freezes-recent-draconian-immigration-rules/articleshow/80387530.cms

Mr. Mehta was quoted by the Economic Times in “U.S. Pulls H-1B Rule Tweak That Vexed Technology Cos” on whether the midnight rules promulgated under the Trump administration will survive as well as how proposed immigration legislation proposed by the Biden administration will affect Indians. Referring to a ban on issuing new H-1B visas that is still in place, Mr. Mehta said, “During that 60-day pause, the administration can issue a new rule to rescind the old rule or such a pause would give more time to challenge those rules in court if the Biden administration decides to go along with them. I can see the Biden administration being sympathetic towards the Department of Labor wage rule that increases the wage requirement to be paid to H-1B workers.”

Mr. Mehta was quoted by the Times of India in “White House Freezes Recent Draconian Immigration Rules. Mr. Mehta said, “As the H-1B rule that sought to replace the lottery system with one based on wages will be frozen for 60 days, it probably will not impact the upcoming H-1B lottery process.” https://timesofindia.indiatimes.com/world/us/white-house-freezes-recent-draconian-immigration-rules/articleshow/80387530.cms

Mr. Mehta was quoted by the Economic Times in “U.S. Pulls H-1B Rule Tweak That Vexed Technology Cos” on whether the midnight rules promulgated under the Trump administration will survive as well as how proposed immigration legislation proposed by the Biden administration will affect Indians. Referring to a ban on issuing new H-1B visas that is still in place, Mr. Mehta said, “During that 60-day pause, the administration can issue a new rule to rescind the old rule or such a pause would give more time to challenge those rules in court if the Biden administration decides to go along with them. I can see the Biden administration being sympathetic towards the Department of Labor wage rule that increases the wage requirement to be paid to H-1B workers.”

Mr. Mehta was quoted by Bloomberg Law in “Trump’s Executive Orders on Immigration Could Be Tough to Undo.” Those who support President Trump’s policies could argue that potential harm could ensue from President-elect Biden’s future executive actions, such as to U.S. workers, Mr. Mehta noted. He also commented on a recent Ninth Circuit decision that he noted could give the President more latitude to overturn previous actions. https://news.bloomberglaw.com/daily-labor-report/trumps-executive-orders-on-immigration-could-be-tough-to-undo

Mr. Mehta’s views on the DOL wage rule are reflected in an India West article, “Labor Department Raises Mandatory Wages for H-1B Workers.” He said, “They [DOL] have skewed prevailing wages and artificially inflated them so that employers will have to pay higher than market wages.” As an example, Mr. Mehta said the pay hike for entry-level workers was “an unjustified entry-level wage.” https://bit.ly/2LXflD9

Mr. Mehta was quoted by the Times of India in “Trump Admin Fires Again: Customers of IT Service Companies to Meet H-1B Filing & Other Obligations Under New Rule.” He said, “This Trump rule, issued in the waning days of a failed presidency, has been designed to kill the India heritage IT industry. However, it will also hurt corporate America that relies on this IT industry to keep humming away and remain competitive in the global economy. The change will also do significant harm to other sectors as well that involve third-party placements, including nursing, consulting, audit, [and] engineering services, among many others.” https://bit.ly/3iymypH

Mr. Mehta co-authored a new blog posting: “Trump’s Final Attacks on H-1B Visas and Legal Immigration: Reintroduction of the Wage Rule and Rule Requiring Client Companies to File H-1B Petitions.” https://bit.ly/3nSN4uP

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) co-authored a new blog posting: “Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump.” http://blog.cyrusmehta.com/2021/01/extending-the-immigrant-and-nonimmigrant-visa-bans-the-last-gasps-of-212f-jurisprudence-under-trump.html

Mr. Mehta and Greg Siskind, of Siskind Susser, P.C., were quoted by the Economic Times in “Joe Biden Revokes Buy American, Hire American Order, Eases Path to H-1B.” Mr. Mehta said, “The BAHA policy gave justification to immigration officers to deny H-1B and L-1A petitions in the name of protecting American workers. Since the BAHA policy came from the President, officers felt incentivized to find ways to deny these petitions even when they were otherwise meritorious.” Mr. Siskind said, “I think the revocation of that memo will have an impact, though it’s not easy to quantify. BAHA essentially was a mandate to change the culture of welcoming immigrants to treating them as a threat to the U.S. Ending BAHA will hopefully be the beginning of restoring that. Another cultural change at the agency was changing USCIS’ mission statement by removing ‘welcoming immigrants’ language. Hopefully, as soon as we have Biden’s appointed USCIS Director confirmed, that will also change.” https://economictimes.indiatimes.com/nri/work/biden-revokes-buy-american-hire-american-order/articleshow/80653866.cms?from=mdr

Mr. Mehta and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) were quoted by Forbes in “DHS and DOL Team Up on H-1B Visas Against IT Services Companies.” Mr. Mehta said he believes both the DOL memo and the DHS rule could be legally vulnerable due to the Supreme Court’s opinion in Kisor v. Wilkie. “While the need for a ‘secondary employer’ to file an H-1B petition was suggested in the preamble to the DHS rule, it is not stated in the actual rule, which essentially defines the employer but does not include any definition of ‘secondary employer’ and the need to file an H-1B petition. DOL’s interpretation of its rule can also be similarly challenged under Kisor. Agencies no longer have unbridled discretion to interpret their own regulations under Auer v. Robbins. If the new interpretation of the ambiguous rule has never been the authoritative position of the DHS and DOL, and it has taken stakeholders by unfair surprise, it should be held to be an unreasonable interpretation under Kisor.” Mr. Mehta said the regulation is also vulnerable “because this is not a de minimis change at all. Through sleight of hand, both DHS and DOL have used the expanded definition, which they term innocuous, to deem client companies as employers and force them to file LCAs and H-1B petitions when they do not pay the wages or have no direct knowledge of the wages paid or other details required under the LCA. This would also interfere in contractual relations and force the vendor to divulge confidential data.” Mr. Stock called it “astounding chutzpah” for DHS to claim a “good cause” exception to the normal rulemaking process and to argue its rule won’t be of any consequence. “It is likely the rule will be struck on both grounds,” he said, adding that it was a “stretch” for DHS to argue that it can accept comments on an invalidly promulgated interim rule from October 2020 and go directly to a final rule, particularly because Chad Wolf’s appointment to serve as acting DHS secretary was ruled unlawful by several courts. https://www.forbes.com/sites/stuartanderson/2021/01/18/dhs-and-dol-team-up-on-h-1b-visas-against-it-services-companies/?sh=417c765547e9

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) co-authored a blog posting: “Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration.” https://www.nationofimmigrators.com/

Mr. Stock, Elise Fialkowski, and Michele Madera of Klasko Immigration Law Partners, LLP, presented the 2021 H-1B cap season essentials and latest developments for U.S. employers and their sponsored employees on January 27, 2021, in “2021 H-1B Lottery: Preparing for a New Administration.” (recording, available by registration)

Mr. Stock was quoted by Forbes in “The Biden Administration and What Happens to Trump’s H-1B Visa rules.” Mr. Stock said, “Because the DOL wage rule has a phased-in process that leaves the current wages in place until July 1 in any event, even if DOL publishes a 60-day delay, it won’t change when that rule really takes effect. It is likely that current lawsuits which successfully rolled back the interim rule will be amended to challenge the final rule on substantive grounds.” https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=320649d3726b

Mr. Stock was quoted by Forbes in “DHS Publishes Final Rule To End H-1B Visa Lottery.” He said, “Under the Administrative Procedure Act, an agency must meaningfully address comments raised by the public in response to the proposed rulemaking. DHS needed to address a significant number of comments regarding whether the rule was lawfully promulgated, and did little more than repeat legal arguments that have been rejected by numerous federal courts about the lawfulness of the DHS secretary’s appointment.” https://www.forbes.com/sites/stuartanderson/2021/01/08/dhs-publishes-final-rule-to-end-h-1b-visa-lottery/?sh=fb098724af04

Wolfsdorf Rosenthal LLP has published several new blog postings: “Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” “Biden Reinstates Travel Restrictions on U.S. Noncitizen Travelers from European Schengen Countries, U.K., Ireland and Brazil; South Africa Added,” “President Biden Moves Forward with Ambitious Immigration Agenda,” “Mandamus Litigation—The Solution for Unreasonably Delayed Employment and Travel Authorization Cards,” “Trump Administration Lifts Regional Covid-19 Bans for Europe and Brazil Starting Jan. 26—Biden Team to Reverse,” “WR Immigration Litigation Success Story—Successfully Challenging the USCIS Denial of an Extraordinary Ability Immigrant Visa in Federal District Court,” “Naturalization Application Denials for Lack of Old Employment or Tax Records,” “Expediting Immigration Applications Before USCIS,” “USCIS to Replace Sticker That Extends Validity of Green Cards,” “DOL Announces New Rule That Will Raise Prevailing Wage Levels in July,” U.S. Will Require Negative COVID-19 Tests From International Air Travelers Starting Jan. 26,” “Tools Biden Will Use to Reverse Trump Administration Business Immigration Bans,” “Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years,” : “DHS Issues Final Rule to Modify H-1B Cap Lottery With Selection Process Based on Wage Level; New Administration Likely to Reverse Course,” “President Trump Extends Presidential Proclamation 10052 Impacting Immigrants and Nonimmigrants,” “January Visa Bulletin Report,” “Expansion of Interview Waiver Eligibility,” and “2020 At-A-Glance: Immigration Update.” https://wolfsdorf.com/blog/

Mr. Yale-Loehr was quoted by Law360 in “DHS Will Maintain H-1B Lottery System Through 2021.” Mr. Yale-Loehr said the announcement was good news for employers and potential H-1B workers, particularly junior-level applicants. “It gives them reassurance that the normal H-1B lottery rules apply again this year. It also means that new graduates have an equal shot this year in being selected for the H-1B lottery. By contrast, if the Trump lottery rule had applied, it is likely that no entry-level applicants would have been selected this year,” he said. https://www.law360.com/articles/1352470/dhs-will-maintain-h-1b-lottery-system-through-2021 (registration required)

Mr. Yale-Loehr was quoted by Correio Braziliense in ” ‘Os EUA estão de volta’, diz Biden ao retomar alianças” (” ‘The U.S. Is Back,’ Says Biden As He Resumes Alliances”). Mr. Yale-Loehr said it will take time for the United States to admit up to 125,000 refugees a year, as the Biden administration has called for. “But it sends a symbolic message that the country supports a robust refugee policy. It is also part of Biden’s more friendly tone towards immigrants,” he said. According to Mr. Yale-Loehr, President Biden has already made several important decisions on immigration, such as ending the ban on travel for Muslims and Africans, temporarily suspending deportations, and creating a task force to bring together separated families. “Reforming the failed immigration system will require the help of the United States Congress,” he noted. https://www.correiobraziliense.com.br/mundo/2021/02/4904774-os-eua-estao-de-volta-diz-biden-ao-retomar-aliancas.html (Portuguese)

Mr. Yale-Loehr was quoted by the Haitian Times in “Over 1400 Haitians Scheduled for Removal by U.S. Immigration Authorities.” He noted that the Biden administration has discretion to review Title 42 and determine expulsion based on legitimate national security concerns, as opposed to a blanket policy that assumes all entrants are a COVID-19 threat. Separately, he said a Texas federal judge’s order “does not require everyone to be deported immediately. The Biden administration can take other administrative steps to review deportation orders.” For example, he noted, the administration can direct immigration officials to loosen prosecutorial discretion, allowing for the continuation of legal proceedings concerning deportation. https://haitiantimes.com/2021/02/03/over-1400-haitians-scheduled-for-removal-by-us-immigration-authorities/ (subscription required)

Mr. Yale-Loehr was quoted by the Associated Press in an article about deportations under the Biden administration. “Scheduling deportations is still a matter of discretion for the agency,” Mr. Yale-Loehr said. https://www.latimes.com/world-nation/story/2021-02-02/hundreds-deported-under-biden-witness-walmart-massacre

Mr. Yale-Loehr was quoted by the Arizona Republic in “Thousands of Dreamers Have Applied for DACA Since December as Texas Court Ruling Looms.” Mr. Yale-Loehr noted that a judge expected to rule on the legality of the Deferred Action for Childhood Arrivals (DACA) program “certainly seemed to indicate that the DACA program was illegal.” Mr. Yale-Loehr said he believes the program is lawful because deferred action has been on the books for 50 years and has benefitted many people. Work permits that DACA recipients receive stem from separate regulations that say that anyone granted deferred action from deportation is eligible for a work permit, he noted. https://bit.ly/3cIokUa

Mr. Yale-Loehr co-authored a new report published by the Brookings Institution, “4 Ways the Biden Administration Can Improve the Employment-Based Immigration System Without Congress.” The article focuses on structural changes to help the U.S. economy attract and retain needed international essential workers. The authors reviewed plans from 14 organizations published after the 2020 election to focus the discussion on employment-based/student immigration, and identified four trends: (1) remove impediments to immigration; (2) improve the predictability of the immigration system; (3) resume the use of discretion by immigration officers; and (4) expand customer service. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/

Mr. Yale-Loehr was quoted by Bloomberg Law in “Biden Agenda Draws Same Legal Challenges Used Against Trump.” Commenting on a Texas court ruling temporarily blocking President Biden’s plan to pause deportations, Mr. Yale-Loehr said the ruling “shows the difficulty that the Biden administration will have in trying to change immigration policy. Not only do they have to worry about a deeply divided Congress, they have to worry about federal courts upending their efforts. He noted that the Biden action was “just a short 100-day pause — not a final realignment of their enforcement policy. But that was still enough for a federal court to strike it down,” at least temporarily. https://news.bloomberglaw.com/us-law-week/texas-victory-over-deportation-pause-is-warning-sign-for-biden Mr. Yale-Loehr was quoted by Inside Higher Ed in “Keeping STEM Ph.D.s.” “These people have very specialized qualifications, and the companies need this kind of specialized talent to be able to compete in the global marketplace,” he said. https://www.insidehighered.com/news/2021/01/27/new-research-argues-need-streamline-green-card-process-foreign-stem-phds Mr. Yale-Loehr was quoted by the New York Times in “In First Blow to Biden Administration’s Immigration Agenda, Federal Judge Blocks 100-Day Pause on Deportation.” Mr. Yale-Loehr said, “The court’s order shows the uphill battle President Biden has in trying to reverse the prior administration’s immigration restrictions. A single judge can halt a federal agency’s effort to review and reprioritize its immigration enforcement policies.” https://www.nytimes.com/2021/01/26/us/politics/biden-immigration-deportation.html (subscription)Mr. Yale-Loehr was quoted by the Sinclair Broadcast Group in an article about possible immigration reform that was distributed by many media outlets nationwide. One such article, “Biden to Seek Comprehensive Immigration Reform in Narrowly Divided Congress,” was published by CBS Austin. Mr. Yale-Loehr said, “Given the 50-50 split between Republicans and Democrats in the Senate, it may be difficult to enact a comprehensive immigration reform bill, whenever Congress gets around it. A narrower bill, such as legislation to help so-called Dreamers, may be easier to enact.” https://cbsaustin.com/news/nation-world/biden-moves-to-dismantle-trump-immigration-policies-as-he-eyes-broader-reform Mr. Yale-Loehr was quoted by Univision in “¿Una moratoria a las deportaciones por 100 días? Piden a Biden actuar mientras revisa la política migratoria de Trump.” Mr. Yale-Loehr said the more than 400 changes to immigration law over the past four years “have caused substantial confusion among lawyers and immigrants. The fact that many of these changes have been challenged in court has only exacerbated the misunderstandings. This may be the goal of poorly drafted and complicated executive orders and agency rules: to deter people from immigrating, seeking asylum, or staying in the United States. The Trump administration has used chaos as a deliberate immigration tactic and it has been effective,” he said, noting that “immigrants have faced repeated threats in multiple settings, including repeated travel bans, the danger of ending Deferred Action for Childhood Arrivals (DACA) programs and temporary protected status (TPS), raids by Immigration and Customs Enforcement (ICE) agents and aggressive asylum restrictions.” He further observed that “the courts overturned or delayed some of the Trump administration’s immigration policy changes. But litigation takes time. And, with enough uncertainty generated, these policies have a similar impact as if they were actually implemented. In essence, the impact of these public policy changes extends far beyond the specific legal modifications themselves.” https://www.univision.com/noticias/inmigracion/reforma-migratoria-biden-deportaciones (Spanish)

Mr. Yale-Loehr was quoted by the New York Times in “A Judge Has Blocked Trump’s Sweeping Restrictions on Asylum Applications.” Commenting on a new rule blocked by a federal judge that would have closed the United States to most asylum seekers, Mr. Yale-Loehr said, “The rule would have been the death knell for many asylum seekers. The court’s decision today leaves the door open for people fleeing persecution.” https://nyti.ms/2JZ3TWY

Mr. Yale-Loehr was quoted by Univision in “Corte de California frena la entrada en vigor de la última regla de asilo de Trump [California court slows Trump’s latest asylum rule from taking effect].” “This new final rule will radically restrict the ability of people fleeing persecution to obtain asylum in the United States,” he said, calling the new rule “an asylum hater’s dream.” Mr. Yale-Loehr said the new rule would “gut the United States asylum system and, ultimately, very few people will be able to request and obtain [asylum].” https://www.univision.com/noticias/inmigracion/corte-de-california-frena-la-ultima-regla-de-asilo-de-trump

Mr. Yale-Loehr was quoted by the Houston Chronicle in “Chef at Houston’s Maharaja Bhog Rejected for Visa Renewal Amid Trump’s ‘invisible wall.’ ” He noted that USCIS began interpreting “specialized knowledge” more narrowly and in 2017 rescinded its policy of instructing officers to defer to prior determinations in petitions for extension of nonimmigrant status. “The Trump administration has been unable to build a physical wall along the U.S.-Mexico border but it has effectively built an invisible wall against legal immigration. The endgame is deny, deny, deny or delay, delay, delay.” He said that rejections of visa extensions for specialized-knowledge workers have cropped up dozens of times in federal court. https://www.houstonchronicle.com/news/houston-texas/houston/article/Houston-chef-maharaja-bhog-visa-reject-trump-15853495.phpMr. Yale-Loehr was quoted by Law360 in “Top 5 Immigration Cases to Watch in 2021.” Commenting on a case before the Supreme Court, Agusto Niz-Chavez v. Barr, he said that if the Supreme Court holds that deportation notices must be sent as one document to stop the clock on residency accrual, the ruling “could affect hundreds of thousands of cases” and give immigrants whose immigration court proceedings were initiated with multipart notices a potential new avenue for relief. The decision could also force the federal government to jump through “more procedural hoops” and worsen an already ballooning immigration court backlog if the government has to reissue old notices and correct future ones to be one document, he said. “That will slow down the immigration court process, and we’ve already got a messed up immigration court,” Mr. Yale-Loehr said. https://www.law360.com/immigration/articles/1333366/top-5-immigration-cases-to-watch-in-2021 (registration required)
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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

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