FGI News and Publications

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


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


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


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


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


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

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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