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 whose U.S. workforce consists of at least 50% H-1B and other nonimmigrant workers, 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 recruitment and posting requirements for all H-1B sponsoring employers;
- Grants federal agencies new investigatory and enforcement authority over the H-1B program;
- Imposes a filing fee in order to submit a Labor Condition Application (LCA) in order to fund an “H-1B Administration, Oversight, Investigation, and Enforcement Account;”
- Eliminates the B-1 in lieu of H-1 program (Note: There is already a U.S. Department of State proposed 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 Fakhoury Global Immigration (firstname.lastname@example.org).
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. worker applicants to mail in resumes to the company, as opposed to using an electronic application process, which the company normally uses;
- Facebook did not advertise on its website for the Green Card positions, even though it normally advertises all of its positions on its website;
- Facebook diverted U.S. worker applicants to other positions within the company, during the recruitment process, so Facebook could move forward with Green Card sponsorship for foreign nationals.
- When placing print newspaper advertising, and the newspaper offered to advertise the Green Card position(s) on electronic web-sites or electronic sources (free of charge), 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 will accept first-time requests for the DACA benefit;
- Inform the public that USCIS will accept DACA renewal requests;
- Inform the public that USCIS will accept 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 Fakhoury Global Immigration, December 2020
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