U.S. Immigration Updates (November-December 2020)
As a result of recent federal litigation, the COVID-19 pandemic,
and the Trump Administration’s efforts to protect U.S.
workers and wages, there have been several U.S. immigration
developments. This writing will provide an update of some of these
recent U.S. immigration developments and the potential impact on
U.S. employers and foreign nationals.
U.S. District Court Issues Decision to Set Aside the
U.S. Department of Labor’s and U.S. Department of Homeland
Security’s H-1B/PERM rules: The U.S.
Department of Labor (DOL) and the U.S. Department of Homeland
Security (DHS) issued two interim final rules (IFR) in the last
quarter of 2020 that negatively impacted the H-1B and PERM labor
certification programs. Specifically, these rules made it
more difficult and costly for U.S. employers to sponsor foreign
nationals for the H-1B category or a U.S. Green Card through the
PERM labor certification program. The DOL rule (Strengthening
Wage Protections for the Temporary and Permanent Employment of
Certain Aliens in the United States) took effect on October 8, 2020
with the DHS rule (Strengthening the H-1B Nonimmigrant Visa
Classification Program) scheduled to take effect on December 7,
2020. The U.S. government moved quickly with these IFRs
claiming that the rules were needed to reduce quickly the high
unemployment rate caused by the COVID-19 pandemic. At least
three challenges were quickly filed by various consortia against
the DOL IFR. The challenge led by the U.S. Chamber of Commerce
filed in U.S. District Court in the Northern District of California
challenged both the DOL and DHS IFRs on the basis the rules were
issued without proper notice and comment to the public, as required
under the Administrative Procedures Act (APA) as well as
substantive violations on immigration law. Recently, the U.S.
District Court for the Northern District of California in
Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331
issued a decision in favor of the U.S. Chamber of Commerce’s
position and ordered the DHS and DOL rules to be set
aside.
The order issued by the U.S. District Court on December 1, 2020,
is positive news for U.S. employers that rely on the H-1B program
and PERM labor certification programs to attract and retain
talent. The order took effect immediately.
In response to the decision issued by the U.S. District Court,
the DOL issued an announcement on December 3, 2020, that provides
information to U.S. employers as to the implementation timeframe
for technical changes for filing Labor Condition Applications (LCA)
in the DOL’s Foreign Labor Application Gateway (FLAG) system
and for processing Prevailing Wage Determinations (PWD). The
announcement issued by the DOL may be found at https://www.dol.gov/agencies/eta/foreign-labor/news.
Note: On December 3, 2020, the
U.S. District Court for the District of New Jersey issued a
preliminary injunction in ITServe Alliance, Inc., at Al, v
Scalia,, et al., No. 20-cv-14604 that came to the same
conclusion as the decision in Chamber of Commerce, et al. v.
DHS, et al., No. 20-cv-7331 with respect to the DOL’s
IFR. However, in the ITSERVE Alliance case, the
preliminary injunction applies to only the plaintiffs of that
case.
Despite wins in both cases, though, it is possible that the
Trump Administration will move quickly to review the comments that
were submitted on the IFRs and seek to issue variations of both as
Final Rules before its term end in January.
U.S. Senate Passes Amended Version of the
“Fairness for High-Skilled Immigrants Act of
2020”: The Fairness for High-Skilled
Immigrants Act of 2020 was introduced on February 7, 2019. Versions
of this bill have been introduced many times in the past. The
bill was intended to amend the Immigration and Nationality Act
(INA) to eliminate the per-country numerical limitations for
employment-based immigrant visas and increase the per-country
limitations for family-sponsored immigrants on a phased-in basis.
The House of Representatives passed its version of the bill 365-65
July 10th, 2019. Senators were long unable to
advance the bill because of demands to add various extraneous
provisions to the bill. . However, on December 2, 2020,
lawmakers came to an agreement, and the U.S. Senate passed the bill
by Unanimous Consent. The Senate passed bill included a range
of new H-1B restrictions sought by Senator Dick Durbin as well as
caps on the number of immigrant visas that could go to H-1B visa
holders and restrictions of certain Chinese nationals that was
sought by Senator Rick Scott. Some of the provisions of the
bill passed by the U.S. Senate include the following:
For so called 50-50 employers:
- Beginning 180 days after enactment,U.S. employers with 50 or more employees in the U.S., and whoseU.S. workforce consists of at least 50% H-1B and other nonimmigrantworkers, will be unable to sponsor foreign nationals for the H-1B
category. Note: This restriction would not apply to renewal
applications filed on behalf of current H-1B employees or H-1B
employees seeking to change employers. In addition, the
Senate’s bill would apply the “single employer”
definition from the Internal Revenue Code (IRC) when calculating
whether 50% of the H-1B employer’s labor force is comprised
of nonimmigrant workers. Under this IRC definition, an
employer may be an entity or multiple entities of a controlled
group of companies.
For All Employers:
- Establishes additional recruitmentand posting requirements for all H-1B sponsoring employers;
- Grants federal agencies newinvestigatory and enforcement authority over the H-1B program;
- Imposes a filing fee in order tosubmit a Labor Condition Application (LCA) in order to fund an“H-1B Administration, Oversight, Investigation, andEnforcement Account;”
- Eliminates the B-1 in lieu of H-1program (Note: There is already a U.S. Department of Stateproposed rule to eliminate this category).
Several provisions of the Senate bill are apparently
unacceptable to key House Members so it is unlikely that they will
consider voting it. This means that the House and Senate will
need to reach agreement on a compromise measure and pass it in both
chambers of Congress before this session of Congress ends in
several weeks. If they do so, it is unclear whether President
Trump will sign it into law.
If a compromise bill were to be enacted and contain the H-1B
provisions, the fact the law would not take effect for 180 days
after enactment (with respect to the above provision affecting H-1B
employers) likely means the legislation would not have an impact on
U.S. employers with respect to the upcoming H-1B
registration/lottery selection process for fiscal year 2022
(October 1, 2021 to September 30, 2022). As the bill is under
debate, the final version remains unknown. Our office will
continue to monitor this legislative activity and provide
information as it becomes available.
U.S. Court of Appeals for the Ninth Circuit Upholds
Limited Preliminary Injunctions of the DHS Public Charge
Rule: On December 2, 2020, the U.S. Court of Appeals
for the Ninth Circuit upheld preliminary injunctions issued by the
U.S. District Court for the Northern District of California and the
U.S. District Court for the Eastern District of Washington against
the DHS’s Public Charge Rule. However, the order issued
by the U.S. Court of Appeals was limited to plaintiff states, which
include California, District of Columbia, Maine, Oregon,
Pennsylvania, Washington, Colorado, Delaware, Illinois, Maryland,
Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Rhode
Island, and Hawaii. The U.S. Citizenship and Immigration Services
(USCIS) will need to issue an announcement and/or further guidance
with respect to how it wishes to implement the injunction that is
limited to the above plaintiff states. It is anticipated that the
U.S. government will contest this decision.
DHS Proposes Rule to Create Wage-Based Selection Process
for H-1B Visas: On November 2, 2020, DHS published a
proposed rule in the Federal Register that would change the
selection process for cap-subject H-1B visas. Under the
proposed rule, the random process used for years to select foreign
nationals for the opportunity to be sponsored for the H-1B category
would be replaced with a wage-based selection process. Under this
new process, preference would be given to those foreign nationals
that are offered the highest salaries by U.S. employers. DHS
has indicated that under this new selection process only those
foreign nationals being offered a Level 3 or Level 4 (highest)
salary would likely be chosen. The proposed rule is currently
in the notice and comment period of the rule making process, and it
is presumed that the Trump Administration will likely publish a
version of the rule as Final before leaving in late January.
It is almost certain that the final rule would be challenged by
those in the business, health care, and academic communities, since
there is no legal authority that permits the U.S. government to
allocate H-1B visas based on how much money the H-1B worker will be
paid. It appears unlikely that the incoming Biden
administration would support this rule change.
Note: U.S.
employers interested in registering a foreign national for the H-1B
lottery selection process for the 2022 fiscal year (October 1, 2021
to September 30, 2022) may want to begin to take steps to identify
those foreign nationals it would like to register at this time,
since the registration window will likely begin in early March
2021. If you need assistance registering a foreign national(s) for
the H-1B lottery selection process in the future, or have questions
about the lottery selection process, or the proposed rule that may
change the lottery selection process, please contact an immigration
attorney or FGI
(info@employmentimmigration.com).
U.S. Government Files Complaint Against Facebook, Inc.
for Violating Regulations in Connection with the PERM Labor
Certification Green Card Program: On December 3,
2020, the U.S. Justice Department’s Civil Rights Division
filed a complaint against Facebook, Inc. (hereinafter
“Facebook”), claiming Facebook did not engage in good
faith recruitment when it tested the U.S. labor market to try to
determine if there were qualified and willing U.S. workers
available to fill permanent, full time position(s), which formed
the basis for Green Card sponsorship for foreign nationals.
(Note: The filing of a PERM labor application with the DOL is
the first step in the U.S. Green Card process for many foreign
nationals.) Some of the allegations in the complaint include
the following:
- Facebook required U.S. workerapplicants to mail in resumes to the company, as opposed to usingan electronic application process, which the company normallyuses;
- Facebook did not advertise on itswebsite for the Green Card positions, even though it normallyadvertises all of its positions on its website;
- Facebook diverted U.S. workerapplicants to other positions within the company, during therecruitment process, so Facebook could move forward with Green Cardsponsorship for foreign nationals.
- When placing print newspaperadvertising, and the newspaper offered to advertise the Green Cardposition(s) on electronic web-sites or electronic sources (free ofcharge), Facebook declined the offer.
U.S. Department of State (DOS) Announces Phased-In
Resumption of Routine Visa Services: DOS has announced a
phased-in resumption of routine immigrant and nonimmigrant visa
services on a post-by-post basis, subject to local COVID-19
conditions. Please note that while the U.S. Department of State has
indicated that embassies and consulates have resumed visa services
in some cases, many embassies and consulates continue to be closed
or offer limited visa services, as a result of the surge of
COVID-19. Emergency visas appointments continue to be
difficult to obtain at certain embassies and consulates.
DHS Extends Flexible COVID-19 Form I-9
Policy: DHS has extended its flexible COVID-19
policy with respect to complying with the physical presence
requirement for Form I-9 (Employment Eligibility Verification)
verification purposes. The policy has been extended through
December 31, 2020. The policy only applies to those employers and
workplaces that are operating remotely. If there are workers
who are physically present at a work location, in-person
verification of identity and employment eligibility documentation
for Form I-9 purposes is still required.
E-Verify participants who meet the criteria and choose the
remote inspection option should continue to follow current
guidance.
USCIS Announces a Revised Naturalization Civics
Test: On November 13, 2020, the USCIS announced plans to
implement a revised version of the U.S. naturalization civics test.
The revised test includes more questions that test the
applicant’s understanding of U.S. history and civics and
covers a wide variety of topics that provide the applicant with
more opportunities to learn about the United States as part of the
test preparation process. It is anticipated that with the
additional questions, interviews in connection with an
applicant’s Application for Naturalization (Form N-400) will
now take longer. The changes have also been met with strong
criticism from many different camps.
U.S. Department of State Revises Guidance with Respect
to Presidential Proclamation 10052 Restricting H-1B, L-1, H-2B, and
J-1 Visas as a Result of Court Order in National Association
of Manufacturers (NAM) v. DHS:
The Department of State (DOS) issued guidance as a result of a
court order in National Association of Manufacturers (NAM) v.
Department of Homeland Security. The revised DOS guidance
clarified the Court’s October 1, 2020 order enjoining the U.S.
government from enforcing a Trump Administration ban on H, L, and J
nonimmigrants under Section 2 of Presidential Proclamation 10052.
Applicants are now considered covered by the NAM
court’s order, as long as the petitioner or sponsoring entity
is a member of one of the named plaintiff association.
Note: This Presidential Proclamation is set to expire
on December 31, 2020, unless extended by President Trump.
U.S. Northern and Southern U.S. Land Borders with Canada
and Mexico to Remain Closed to All but Essential Travel through
December 21, 2020: The U.S. has restricted land
border entry into the U.S. to all but essential travel since March
2020 as a result of the COVID-19 pandemic. It is anticipated
will be extended for another 30 days through January 21, 2021, as
it has been extended each month since March 2020. The land
border entry restriction to all but essential travel does not apply
to U.S. citizens. Please note that while the U.S. land border
has been closed to all but essential travel, air travel into the
United States between the U.S. and Canada and the U.S. and Mexico
has not been restricted in the same manner.
U.S. District Court Reinstates Deferred Action for
Childhood Arrivals (DACA): On
December 4, 2020, the U.S. District Court for the Eastern District
of New York ordered DHS to fully re-instate the DACA program.
The order is to take effect immediately, and requires DHS to take
the following action:
- Post notice of the order;
- Inform the public that USCIS willaccept first-time requests for the DACA benefit;
- Inform the public that USCIS willaccept DACA renewal requests;
- Inform the public that USCIS willaccept DACA advance parole requests.
DACA is a U.S. immigration policy that allows foreign nationals
who came to the U.S. illegally as children with their parents to be
eligible to obtain employment authorization if certain requirements
are met. Those who receive DACA are often referred to as
“Dreamers.” It is anticipated there will be
continued litigation in the future regarding the DACA immigration
policy. This includes the ongoing case before Judge Hanen of
the District Court for the Southern District of Texas who has a
hearing scheduled on a different challenge to DACA on December
22nd.
President-elect Biden announces nominees for DHS
Secretary and US Trade Representative: President-elect
Biden has announced his nominees to serve as Secretary of the
Department of Homeland Security (DHS) and as U.S. Trade
Representative. On November 23, 2020, Biden announced his intent to
nominate Alejandro Mayorkas, a Cuban American, to head the DHS.
Previously head of the US Citizenship and Immigration Services
(USCIS) under the Obama Administration, Mayorkas would be the first
Latino and first immigrant to hold this position. On December 9,
2020, Biden announced Katherine Tai as U.S. Trade Representative
(USTR). Tai, who currently serves as House Ways and Means Committee
trade lawyer, would be the first woman of color and the first Asian
American to hold the position.
Originally Published by FGI,
December 2020
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