The Biden administration announced that restrictions on travel known as the “14-Day Rules” will remain in effect, despite former President Trump’s decision to terminate some of them. These rules restrict entry by most non-U.S. citizens and non-Green Card holders from China, Iran, the United Kingdom, Ireland, Brazil and the 26 Schengen Zone countries.  While there are exemptions and national interest exceptions, these restrictions prevent travelers who have been in the named countries within 14 days prior to departure from entering the United States. On Saturday, January 30, 2021, South Africa will be added to the list of restricted countries due to the new strain of COVID discovered in that country. The new strain has not yet been discovered in the United States.

As of January 26, 2021, under CDC regulations, individuals who can travel to the United States will be required to provide proof of a negative COVID-19 test within three days of departure or documentation of recovery from COVID-19 before boarding flights. This requirement applies to all passengers over two years old flying to the United States from abroad, including U.S. citizens and Green Card holders. More than 120 countries have similar requirements. The White House confirmed that at this time there will not be any waivers for travelers coming from countries where testing is limited. The CDC also directs people to stay home for seven days upon return and get tested three-to-five days after return.

As a further preventive measure, mask-wearing will be required domestically at all airports, on commercial aircraft, trains, public maritime vessels, including ferries, and intercity bus services and on all federal properties.

Jackson Lewis will continue to follow these changes and provide updates as they become available.

On his first day in office, President Joseph R. Biden signed a memorandum for the Attorney General and the Secretary of Homeland Security ordering them to preserve and fortify the Deferred Action for Childhood Arrivals policy (DACA). DACA was instituted by President Obama, terminated by President Trump, and restored by the judiciary. With this proclamation, it seems clear that the government should at least return DACA to the status quo ante and continue to follow the relevant court order:

  • Accept first-time requests for deferred action;
  • Accept renewal requests for deferred action;
  • Accept applications for advance parole documents;
  • Extend one-year grants of deferred action to two years; and
  • Extend one-year employment authorization documents to two years.

In a separate Order, President Biden also extended Deferred Enforced Departure (DED) and employment authorization for Liberians until June 3, 2022.

In the meantime, the Biden Administration has also proposed an overhaul of U.S. immigration laws. This proposed legislation includes, among many other things, benefits for DACA recipients and migrants in Temporary Protected Status (TPS).  TPS beneficiaries are individuals from countries ravaged by natural disasters or political unrest who cannot return to their homes.  Like DACA recipients, TPS beneficiaries have been in limbo for years as the Trump Administration attempted to terminate that status while recipients and immigration advocates have supported litigation to keep those protections in place.

It has been reported that the proposed immigration overhaul includes the immediate ability of “Dreamers” and TPS beneficiaries to apply for Green Cards (assuming they meet eligibility requirements) followed by a three-year path to citizenship.

Jackson Lewis will continue to follow developments and provide updates as they become available.

President Joseph Biden signed the Proclamation on Ending Discriminatory Bans on Entry to The United States (“Proclamation Ending Discriminatory Bans”) during his first hours in office, terminating the controversial Muslim Ban and its sequel, the Africa Ban.

The Muslim Ban was based on an Executive Order (EO) that former President Donald Trump signed almost four years ago during his first days in office. Litigation around that Executive Order kept the Muslim Ban from going into effect until June 2018, when the U.S. Supreme Court upheld the ban in a 5-4 vote. The new Proclamation Ending Discriminatory Bans also will terminate some previously instituted proclamations regarding extreme vetting.

The Muslim Ban affected individuals from seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. While there were some exceptions, the EO basically blocked entry of citizens from those countries as immigrants or nonimmigrants. (Venezuela’s ban was directed solely at government officials and their family members.) Although waivers were available, almost 75% of all waiver requests reportedly were denied. The Africa Ban, issued in early 2020, blocked individuals applying for immigrant visas from Eritrea, Kyrgyzstan, Myanmar, and Nigeria and individuals applying for Diversity Visas from Sudan and Tanzania.

The Proclamation Ending Discriminatory Bans does not affect other travel restrictions related to COVID-19, including the Presidential Proclamations blocking the entry for immigrants and certain nonimmigrants due to economic conditions brought on by COVID-19. The Presidential Proclamations related to travel restrictions from the UK, EU, and certain other countries due to COVID-19 contagion concerns  will also remain in effect, notwithstanding the Trump administration’s indications that these would be withdrawn as of January 26, 2021.

Under the new Proclamation Ending Discriminatory Bans, the Department of State (DOS) will provide a proposal for how to reconsider applications denied based on now-suspended restrictions, a plan for adjudicating pending waiver requests, and recommendations on how to improve the vetting and screening process, including an assessment of the benefits of using social media identifiers in that process, among other things.

If you have any questions regarding the web of travel restrictions terminated and those still in effect, please reach out to your Jackson Lewis attorney.

Apparently undeterred by prior litigation striking it down, the Department of Labor (DOL) has published another rule in the Federal Register raising minimum wages for high-skilled workers. The “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” Rule (Wage Protection Rule) will go into effect on March 15, 2021 and will start to affect H-1B, H-1B1, and E-3 work visa cases, as well as PERM filings in July 2021.

Employers sponsoring individuals in these types of cases must affirm that they will pay the appropriate prevailing wage as determined by DOL. There are four DOL wage levels. The minimum wages for each level are based on the DOL’s calculation of the local median salary for a specific position. In the October 8, 2020, iteration of the Wage Protection Rule, Level I was changed from the 17th Percentile to 45th Percentile. Level II moved from the 34th Percentile to the 62nd. Level III went from the 50th Percentile to the 72nd. Finally, Level IV moved from the 67th Percentile to the 95th Percentile. In the new Wage Protection Rule, these have been adjusted downward, somewhat.

This time, Level I is set at the 35th Percentile, Level II at the 53rd, Level III at the 72nd, and Level IV at the 90th Percentile. In other words, Level I and Level II have moved up a step: Level I is now the equivalent of Level II and Level II is the equivalent of Level III. DOL statistics for H-1B cases show that, historically, 31% of the selected cases filed in the annual “H-1B Lottery” were at Level I, and 53% were Level II. In general, 60% of  H-1B and E-3 cases have been at Level I and Level II. What this means is that once the new wage structure goes into effect, employers will find it more difficult to hire entry level workers (those at Levels I and II) who currently constitute approximately 84% of all selected H-1B lottery cases and approximately 60% of  H-1B and E-3 petitions.

With the new rule, DOL is attempting to address not only issues that were raised by opponents regarding the wage levels themselves, but also the transition to the new wages. No longer is the DOL trying to put the new rule in place immediately as it did when the original rule was published in the Federal Register. Instead, the wage increases will be phased in over a period beginning on July 1, 2021, with most beneficiaries not becoming fully subject to the new wages until July 1, 2022. In addition, DOL is adopting a longer, three-year transition period for those who are eligible to extend their H-1B status beyond the usual 6-year limit due to a pending green card process. Individuals eligible to extend their H-1Bs beyond the usual 6-year limit as of October 8, 2020, will not become fully subject to the new wages until July 2024.

The incoming Biden Administration plans to issue an Executive Order to “halt or delay” any Trump Administration rules that have not gone into effect prior to inauguration day. This DOL rule likely will fall into that category. We will continue to follow the progress of this rule. If you have any questions about its application, Jackson Lewis attorneys are available to advise you.

Due to the global coronavirus (COVID-19) pandemic, land border travel between the United States and Canada has been restricted since March 21, 2020, and will likely continue through at least January 21, 2021. Individuals may not be admitted for tourism or other non-essential reasons. For the most part, work has been considered an essential activity. Until recently, however, the restrictions have not affected those flying between Canada and the U.S.

Starting January 7, 2021, due to the worsening of the COVID-19 pandemic, Canada’s new policy requires those flying to Canada to show a negative COVID-19 test. Passengers five and older will need to provide proof of a negative laboratory test result for COVID-19, taken within 72 hours of flight departure, prior to boarding a flight to Canada. Absent that documentation, individuals will be denied boarding. Once they have arrived in Canada, the travelers will be subject to Canada’s 14-day quarantine rules. Those showing indications of illness will be referred to the Public Health Agency of Canada for further assessment and screening. Canada aggressively enforces its quarantine rules and violations can result in possible jail time and up to $750,000 in fines.

Canada, like the United States, had banned travel from the United Kingdom based on the new strain of COVID-19 that was identified there. The U.S. Centers for Disease Control and Prevention (CDC) is expected to release a universal testing requirement like Canada’s by the end of January: all individuals flying in from abroad, including U.S. citizens, would have to present a negative COVID-19 test.

Other countries also have been strictly patrolling their borders due to the COVID-19 uptick. Following is a sample:

Travel restrictions are changing quickly to meet safety measures during the pandemic. Individuals should check relevant sources for travel updates prior to undertaking any travel, international or domestic, including embassy websites, Department of State travel pages, state COVID-19 websites, the CDC, and specific airline companies.

If you have questions regarding the panoply of travel and quarantine restrictions, Jackson Lewis attorneys are available to assist you.

U.S. Citizenship and Immigration Services (USCIS) announced that it is experiencing delays in issuing receipt notices for some applications and petitions filed at USCIS lockboxes that are located in Chicago, Illinois, Phoenix, Arizona, and Lewisville, Texas. This announcement does not come as a surprise to most filers, since delays have been experienced for some time and have become even longer since October 2020, when thousands of Form I-485 Adjustment of Status applications were filed.

Adjustments due to COVID-19 restrictions at USCIS are adding to the problems. Not only can it take more than two months for receipts to be issued, but filing fee checks (the cashing of which became a way to determine whether an application or petition was received) are not timely cashed. These delays also are seen with other cases filed at lockbox addresses, such as Form I-765 Applications for Employment Authorization and Form I-131 Applications for Travel Documents. The delays have been particularly long for students applying for EADs who, like others, are experiencing gaps in employment authorization.

USCIS confirmed that, despite any delay, once the receipt is issued, it will reflect that actual date of receipt. USCIS also maintains the delays will not result in payments going beyond their validity dates.

USCIS asks stakeholders to be patient and says it is working extra hours and redistributing workloads to deal with the backlogs.

In order to speed up the receipt-acknowledgment process, USCIS suggests that applicants complete and attach Form G-1145, E-Notification of Application/Petition Acceptance to their filings at lockboxes to request a text message or email upon receipt.

If you have questions about receipting delays, please reach out to your Jackson Lewis attorney.

USCIS has released its final rule on the modification of the H-1B cap selection process (“Modification Rule”) to prioritize petitions with the highest wage levels in the Federal Register.

Unless the Biden administration decides to delay or freeze the new rule, the rule will become effective on March 9, 2021 (60 days from publication), in time for this year’s H-1B Cap Registration process.

Since 2007, USCIS has conducted a lottery for the limited number of Cap H-1B available. The lottery selection was random, although skewed toward beneficiaries holding U.S. advanced degrees. The process allowed petitioners who held U.S. advanced degrees to compete first in the overall lottery and, if not selected, again in a special lottery only for those holding U.S. advanced degrees. While the Modification Rule will continue this dual lottery system, it will prioritize the selection of cases in each lottery based on the highest wage levels for the appropriate Standard Occupational Classification (SOC) code in the area of intended employment.

In 2020, the only substantive question that had to be answered as part of the electronic registration process was whether the beneficiary held a U.S. Master’s degree or higher. Now, if the rule goes into effect, there will be an additional question. The employer will have to determine and list the highest Occupational Employment Statistics (OES) prevailing wage level the proffered wage equals or exceeds for the relevant SOC code in the intended area of employment. The employer will not be asked to provide the SOC code or the proffered wage. The wage level alone will establish the ranking order – starting with Level IV and working down. Once a petition is selected for submission and is filed, USCIS will review the petition for possible inconsistencies.

Historically, based on the random lottery, about 31% of selected Cap H-1B petitions were Level I, 53% were Level II, 10% were Level III, and 4% were Level IV. Since no quotas will be set on wage levels, the new rule will increase the number of Level III and Level IV cases that are selected. This will make it more difficult for employers that wish to hire entry-level employees (such as talented recent U.S. college graduates), but it will provide more certainty to employers that hire employees at Level III and Level IV wages.

The Modification Rule was originally published in the Federal Register in November 2020. During the Comment Period, the Department of Homeland Security (DHS) received over 1,000 comments. There were many concerns, including about: the effects on universities, the economy in general, physician shortages (especially in rural areas), and off-shoring – not to mention questions about whether this new rule would be ultra vires or otherwise abused. DHS parried such criticisms and ultimately made no changes to the Modification Rule.

Jackson Lewis attorneys will continue to follow the course of this rule and others that may affect the Cap H-1B process this year. Please reach out to us with any questions you may have.

On December 31, 2020, just as it was about to expire, President Donald Trump extended the ban on immigrant and nonimmigrant visas until March 31, 2021. Initiated in April and June 2020, the bans were intended to block immigrants and nonimmigrants (with H, L and J visas) from coming to the United States due to economic concerns related to the COVID-19 pandemic.

The nonimmigrant ban which has created a great deal of uncertainty for employers was partially blocked by a federal judge who determined that it likely exceeded the authority of the Executive Branch. The injunction, however, was not nationwide and only applies only to members of the plaintiff organizations: National Association of Manufacturers, Chamber of Commerce of the United States, National Retail Federation, Technet and Intrax. Some national interest exemptions are available but the requirements vary from consulate to consulate. Moreover, just obtaining visa appointments at the consulates can be challenging due to reduced operations.

These are far from the only travel restrictions that are still in effect. Presidential Proclamations blocking the entry of individuals who have been in 30 different countries during the 14-day period prior to admission remain in effect and due to the new strain of COVID-19 identified in the United Kingdom, air passengers from the United Kingdom are not allowed to board flights to the United States unless they have proof of a negative COVID test within no more than three days prior to the flight. Passengers must provide an attestation regarding the testing. This restriction, unlike the others, applies not only to foreign nationals but to U.S. citizens and green card holders as well.

Jackson Lewis attorneys are available to assist you with questions regarding these restrictions as well as those COVID-related restrictions such as those at the Northern and Southern borders which have been extended until January 21, 2021.

The USCIS filing fee increases that were proposed last summer will not be implemented.

In August 2020, the Department of Homeland Security (DHS) published a new filing fee rule in the Federal Register that raised USCIS filing fees by a weighted average of 20%. Some popular business-related petitions were slated for larger increases, from 51% for TN and E petitions to 75% for L petitions to 85% for temporary, seasonal agricultural workers. DHS wanted to increase fees to reduce its projected $1 billion deficit. Critics complained that these increases would negatively affect immigrants, businesses, and the economy. The new fees were to go into effect on October 2, 2020. At the last moment, a federal judge in California enjoined the rule. Despite the government’s request, the judge refused to enter a stay of the injunction pending a decision on an appeal. On December 28, 2020, the day the government was to file its opening brief in the federal appellate court, the Department of Justice (DOJ) voluntarily moved to dismiss the appeal the Administration previously decided to pursue.

This signals the end of those fee increases – at least for now. In addition, the form and policy changes that were included in that fee-increase rule will not be implemented. This includes a proposed change in the premium processing timeline from 15 calendar days to 15 business days, up from two weeks to three weeks.

Jackson Lewis attorneys will provide updates as they become available.

On January 4, 2021, DHS announced that for I-9 purposes, Deferred Action for Childhood Arrivals (DACA) recipients may present an unexpired Employment Authorization Document (EAD) with Code C33 issued on or after July 28, 2020, along with an I-797 Extension Notice that shows an additional one-year extension. This new procedure is in response to a court order.

After the U.S. Supreme Court ruled the Administration had not properly terminated DACA, Acting Director of Homeland Security, Chad Wolf, issued a memo explaining that the Administration would be reviewing DACA and that until the review was concluded, DACA would be restricted. No new initial applications would be accepted, renewals (including renewals of EADs) would be limited to one year, and advance parole would be issued only for urgent humanitarian purposes, the memo stated. Then, in November 2020, a federal judge, Nicolas G. Garaufis, ruled that Acting Director Wolf had not been properly appointed and his rollback of DACA, therefore, was invalid.

As part of the Judge’s ruling, USCIS was ordered to post notices informing the public of how the court’s order would be implemented. That notice can be found on the USCIS website along with instructions on how to apply for DACA. In compliance with the court order, USCIS notified the public it would do the following under the terms of the DACA policy in effect prior to its termination by President Donald Trump on September 5, 2017:

  • Accept first-time requests for deferred action;
  • Accept renewal requests for deferred action;
  • Accept applications for advance parole documents;
  • Extend one-year grants for deferred action to two years; and
  • Extend one-year employment authorization documents to two years.

USCIS also agreed to take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization to those who were issued such documentation on or after July 28, 2020, with only a one-year validity period. As it turns out, that evidence will be in the form of an I-797 Extension Notice.

DHS plans to comply with the above while the Judge’s ruling remains in effect, “but DHS may seek relief from the order.” DHS has not yet appealed the order. Although President-elect Joe Biden has said he would protect DACA, another case threatening the program is pending in federal court in Texas.

Jackson Lewis attorneys will continue to provide updates as they become available.