Once again, just as it was about to expire, ICE has announced a further extension of flexibility in its rules related to Form I-9 compliance. This time, the extension will continue through December 31, 2020.

Employers will be able to continue to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).

ICE has reiterated that the policy applies only to employers with workplaces that are operating remotely and that if employees are physically present at the workplace, no exceptions will be implemented. Whether ICE will be reasonable and assess circumstances on a case-by-case basis is yet to be seen.

Remember that any employees who were onboarded virtually must report for in-person verification once the employer’s normal operations resume (which may be earlier than December 31, 2020) or once the employee is physically present at the work location, whichever is earlier.

If the company does not seem to be eligible for the flexibility, an employer may continue to designate authorized representatives to act on their behalf to conduct in-person review of documents.

With companies in often changing and various stages of returning to workplaces, Jackson Lewis attorneys are available to assist you in determining how the rules apply to your particular circumstances.

Federal District Judge Nicolas G. Garaufis struck down the Administration’s most recent attempt to limit the Deferred Action of Childhood Arrivals (DACA) program. He held that the Acting Secretary of Homeland Security, Chad Wolf, had not been properly appointed and therefore, his recent rollback of DACA was invalid. Rules regarding appointment and succession are meant to ensure continuity of leadership but the Trump Administration has tried to circumvent those rules to place particular candidates at the top of DHS without following the normal Senate confirmation process.

The court’s objection to those actions has set the stage for close to a million people across the country to benefit or continue to benefit from DACA protections while they await the arrival of the next administration. Joe Biden has said that one of his first acts would be to reinstate DACA.

The backdrop of the recent federal court decision is dramatic. The U.S. Supreme Court ruled in June 2020 that the Administration had not properly terminated DACA, leading many (including DACA recipients themselves) to believe that DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Although the Supreme Court decision left the door open to the Administration to terminate DACA through proper administrative processes, the belief was that everything would revert to the “status quo ante” in the meantime. But the Administration saw the Supreme Court opinion differently. On July 28, 2020, Acting Director Wolf issued a memo explaining that the Administration would be reviewing DACA to possibly take the steps to terminate it (per the Supreme Court decision), but until that could occur, DACA would be restricted as follows:

  • DHS would not accept applications for initial DACA applications.
  • Renewals of DACA for current beneficiaries would be limited to one year, rather than the usual two years.
  • Advance Parole would be issued only for urgent humanitarian reasons or for the sake of a significant public benefit.

In response to the suit challenging the July 28th Wolf memo, Judge Garaufis said that, despite the Administration’s various tangled attempts to appoint and reappoint Chad Wolf properly, none of those attempts served to correct the problem. He wished “the government well in trying to find its way out of [its] self-made thicket.”

The ruling was not unanticipated because many other cases have raised the issue, including cases challenging new asylum rules, new USCIS fees, the new public charge rule, and new rules regarding H-1B visas, and judges have been open to the argument. DHS is likely to appeal the ruling because the validity of DHS appointments will continue to thwart and undercut the Administration’s last-minute regulatory efforts.

Jackson Lewis attorneys will provide updates as they become available.

The Department of Homeland Security (DHS) has announced the arrest of 15 individuals who claimed to work on Optional Practical Training (OPT) for nonexistent companies.  In addition, USCIS notified 700 OPT recipients suspected of being complicit in similar activities that it would revoke their employment authorization.  Further, USCIS notified an additional 400 OPT recipients that they would not be allowed to renew their work authorization because they are allegedly working in positions unrelated to their fields of study.

Approximately 223,000 students participate in OPT programs.  Until relatively recently, the United States always has been a popular destination for foreign students.  However, the Administration has enacted restrictions and scrutinized key programs that have done just the opposite.  As a result, the United States’ share of foreign students is dropping.

Since 2017, in addition to increased scrutiny of immigrant and nonimmigrant filings across the board, the Administration has instituted targeted policies and proposed rules that have created much uncertainty and anxiety among both current and potential foreign students. This includes restrictions such as the 2017 Travel Bans, enacting policies making it more difficult for students to travel, preventing new students from coming to study at universities that have gone fully remote due to COVID-19, and the proposed new rule that would make it more costly and more difficult for students to remain in the United States throughout the duration of their academic programs.

Beyond these rules and proposals, the Administration has continuously expressed skepticism and concerns about the OPT program, which allows students to remain for a limited period of time to train by working in their field of study.  Most analysts have seen OPT as a plus, as international students contribute over $40 billion to the economy yearly.  However, while OPT has been a big draw for foreign students who wish to train in the United States to pursue their professions, the Administration has viewed the program in a negative light, claiming it potentially enables employers to hire lower wage foreign workers at the expense of U.S. talent.

As a result, in 2019, DHS announced it would perform OPT requirement compliance checks by increasing inspections at worksites of companies employing students using STEM OPT.  Then, in January 2020, the Counterterrorism and Criminal Exploitation Unit of DHS commenced Operation OPTical Illusion (OOI), which targeted nonimmigrant students potentially involved in fraud with regard to OPT.  This came to a head on October 21, 2020 with the arrest of 15 individuals.

At the time, the Acting Director of DHS, Ken Cuccinelli, warned that this was only a first step and that DHS will also target Designated Student Officials (DSOs) at universities who enable such activities through the Office of the Inspector General (OIG).  DSOs advise foreign students and communicate their status, work authorization, and other information to U.S. Immigration and Customs Enforcement (ICE) primarily through SEVIS (Student Exchange Visitor Information System), the database program that manages and tracks foreign students while they are in the United States.  Esther D. Brimmer, the Executive Director and CEO of NAFSA: Association of International Educators, noted that it is “reckless” to threaten and scapegoat DSOs for economic problems that are not even related to OPT particularly, because “[i]t is not the responsibility of DSOs to investigate international students’ OPT employers.”

If you have any questions about Operation OPTical Illusion or any other foreign student-related matters, Jackson Lewis attorneys are available to assist you.

 

The U.S. Seventh Circuit Court of Appeals issued an administrative stay a day after a federal district court held the Public Charge Rule violated the Administration Procedures Act (APA)  and issued summary judgment in favor of the plaintiffs. 

During October 2020, thousands of Adjustment of Status (AOS) applications were filed by individuals and law firms around the country following the U.S. Citizenship and Immigration Service’s (USCIS) September announcement that for the month of October it would use the Department of State’s Dates for Filing Chart instead of the usual Final Action Dates Chart. This allowed individuals who previously could not file AOS applications because their priority dates were not current to file. Most of the filings had to include a new form, the USCIS’s Form 944, Declaration of Self-Sufficiency Form 944 was introduced as part of the Administration’s new Public Charge Rule and requires applicants to demonstrate they are not inadmissible on the public charge ground. Form 944 and the Public Charge Rule had been subject to an injunction, but the U.S. Supreme Court stayed that injunction in January 2020.

Form 944 is 18 pages long and includes questions about household income, assets, resources and financial status. Each family member must list their assets and resources, liabilities and debts, credit score and report, information about health insurance, any use of public benefits, and all education and skills. Each data point must be fully documented with attachments. Some of these filings included more than 150 pages of documentation per individual applicant.

In Cook County, Judge Gary Feinerman held that the Public Charge Rule violated the APA because the Rule exceeded DHS authority, is not in accordance with law, and is arbitrary and capricious. Accordingly, the court vacated the rule nationwide. Drawing support for the nationwide vacatur from precedent, the judge wrote: “What would it mean to ‘vacate’ a rule as to some but not other members of the public? What would appear in the Code of Federal Regulations?” Judge Feinerman refused to stay his decision pending appeal.

DHS has yet to issue guidance regarding these rulings, but it appears that the Form 944 must once again be used — at least for now.

Jackson Lewis attorneys will monitor the situation and provide updates as they become available.

U.S. Immigration and Customs Enforcement (ICE) has been flexible about how to complete Form I-9 employment verification due to the COVID-19 pandemic, allowing companies working remotely to inspect documents virtually (e.g., over video link, fax, or email) since March 2020. The period of flexibility has been extended over and over and is now scheduled to end on November 19, 2020 – although it may very well be extended again.

DHS has explained that the flexibility is in place until the company returned to “normal operations,” after which documents that were examined remotely would have to be examined “in person” within three business days. This requirement did not clearly explain what constitutes a  return to “normal operations.” For example, if some employees  returned to the office, but not others, was that “normal operations”? If some essential employees were on site, but the human resources staff who generally examined I-9 documents were still working remotely, was that a return to “normal operations”? Indeed, if some employees were on site, was the employer entitled to use “flexibility” at all? ICE has indicated that these sorts of questions would be reviewed on a case-by-case basis. The hope has been that ICE would be reasonable given the circumstances.

At the end of October, DHS offered additional guidance and more clarity. In a guidance document, it said:

  • An employee’s documents must be verified in-person within three business days of that employee physically returning to the workplace.
  • ICE will not require employers to mandate that newly hired employees report to work in advance of any phased reopening procedure established by the company or state and local authorities merely for the purpose of verification.
  • Once the employee is physically present at a work location, no exceptions are being implemented for in-person verification.

This means that as long as flexibility remains in place, if employees are returning to the worksite in phased fashion, reverifications will be conducted in a phased fashion. But if the individuals who generally conduct I-9 verifications are not at the worksite, verifications will still have to be done within three business days, since no exceptions are allowed.

In FAQs, the DHS also clarified what to do about lost or expired documents:

  • If the documents that were valid when originally presented are no longer valid at the time of “in-person” verification, no additional documentation is required.
  • If the documents that were originally presented are lost or unavailable, the employee should fill out a new Form I-9 and present any relevant combination of List A, B, or C documents. The remote hire date should be used on the new form and the new I-9 should be attached to the old I-9 with a note indicating the original documents were unavailable at the time of verification.

ICE also has indicated that if the employee who conducted the virtual inspection is no longer available, the employee conducting the in-person verification should complete a new second page (Section 2), attach that to the old I-9, and sign the verification.

Jackson Lewis attorneys are available to answer any questions and advise on the complex web of I-9 requirements, including the interaction with E-Verify.

 

Having instituted a new on-line registration process for Cap H-1B petitions last year, on November 2, 2020, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking to replace the random selection process with a process that prioritizes H-1B petitions with the highest wage levels.

DHS sees wage levels as a proxy for skill level and is proposing this change to align with the Trump Administration’s desire to provide H-1B visas only to the “best and the brightest.” DHS plans to make this change through rulemaking even though the agency notes in the rule itself that it was previously of the opinion that basing selection prioritization on factors other than degree level, such as salary, would require legislation.

Under the  proposed rule, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions (the Modification Rule), the U.S. Citizenship and Immigration Services will prioritize the selection of cases based on the highest wage levels for the SOC Codes in the area(s) of intended employment – starting with Level IV and moving downward. Cases that use private wage surveys rather than Occupational Employment Statistics (OES) wages would be classified as Level I or below.

Wage level has not previously been a factor in the lottery selection process, including last year’s registration process where no information about the proffered position was required. The only substantive question was about whether the beneficiary held a U.S. Master’s degree or higher. If the proposed rule goes into effect, information including the wage level, the SOC code, and the area(s) of intended employment will be needed.

The Modification Rule is the third in a trio of recently announced rules that are dramatically changing the H-1B process. The first, issued by the Department of Labor, raised prevailing wages, essentially eliminating all entry-level wages for H and E-3 visas. This rule is already in effect. The second, set to go into effect in December, changes the definitions of “specialty occupation” and the “employer-employee relationship.” DHS has predicted that with these changes, one-third of H-1B petitions will be denied. Both these rules were promulgated as interim final rules and have already been challenged in court.

There will be a 31-day substantive comment period until December 2, 2020. DHS is promoting the idea that elimination of the random selection process will make it possible for petitioners to potentially improve their chances of selection by agreeing to pay higher wages to H-1B workers. However, because prioritizing by wage level will effectively preclude most entry and lower experience positions, many companies will find they are no longer able to realistically rely on H-1B employees.  It is expected that the Modification Rule, like the others in the trio, will become the subject of litigation.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.

Announced via Tweet by Chad Wolf, Acting Secretary of the Department of Homeland Security, the COVID-related restrictions at the Canadian and Mexican borders have been extended yet again until November 21, 2020. These restrictions apply to land and sea entries and prevent entry for non-essential purposes. Although there continues to be some inconsistency at ports of entry, travel for work is generally permitted whereas travel for tourism including sightseeing, recreation, and cultural events is not considered to be “essential.”

For the first time since instituted, Acting Secretary Wolf indicated that these restrictions may ease in the future.

If you have questions about these restrictions as well as Canadian quarantine requirements, Jackson Lewis attorneys are available to assist.

The B-1 in lieu of H-1B visa has been used by international companies to bring employees who remain on payrolls abroad to the United States for short periods of time (generally fewer than six months) to do professional level work that benefits the company abroad. Through the rulemaking process, the Department of State is proposing to eliminate the B-1 in lieu of H-1B.

This is the government’s latest move under the authority of President Donald Trump’s Buy American, Hire American Executive Order. Others include the proclamation that was meant to block the entry of individuals in H-1B status on account of COVID-19 and new rules that would upend settled employment expectations by tightening H-1B regulations and raising H-1B wages – all of which are subjects of litigation.

According to DOS, only about 6,000 – 8,000 of these visas are issued annually. The Administration continues to rigorously enforce its mandate to protect economic interests in the United States and the B-1 in lieu of H-1B is the most recent casualty. The rationale is that these individuals enter the United States in B-1 in lieu of H-1B status without complying with the more rigorous prevailing wage requirements of an H-1B or filing petitions with USCIS, depriving USCIS of its filing fees. But in most instances, B-1 in lieu of H-1B status is used conscientiously and foreign workers do not replace U.S. workers – they are doing work for the benefit of a foreign entity for a very limited period. If the proposed rule goes in effect, only employees who qualify for “regular” B-1 status as business visitors will be allowed to use B-1 business visas. This would include, among other things, engaging in commercial transactions that do not involve gainful employment, taking orders, negotiating contracts, consulting with business associates, participating in litigation, attending conventions, conferences or seminars, and undertaking independent research.

Comments on the proposed rule may be submitted until December 21, 2020. If the new rule is enacted, those with valid B-1 in lieu of H-1B visas at that time will not have their statuses revoked. However, the proposed rule notes that individuals will be subject to independent reviews by the Department of Homeland Security upon entry into the United States. This may suggest that travelling in B-1 in lieu of H-1B status might become risky.

Jackson Lewis attorneys are available to assist you with questions about how this proposed rule might affect your employees, and we will provide updates as they become available.

 

Business groups, universities, and technology consulting firms have filed suits seeking to enjoin the new rules on H-1B and PERM labor certification programs issued by the Department of Homeland Security (DHS) and the Department of Labor (DOL) on October 8, 2020.

Those rules, both issued as Interim Final rules and without the usual notice and comment, could upend the H-1B and PERM labor certification programs by changing statutory definitions, targeting staffing and consulting firms with onerous requirements, and hiking required wages by 35% to 200%. To date, three separate lawsuits have been filed in federal district court, seeking to enjoin implementation of the new rules.

The complaint filed in California, Chamber of Commerce of the United States of America et al. v. the Departments of Homeland Security and Labor, et al., challenges both the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule.

The plaintiffs, which include the U.S. Chamber of Commerce, the National Association of Manufacturers, and a number of universities and associations, contend that the new rules will “substantially restrict, if not outright eliminate, the H-1B visa category.” Nonetheless, the government issued both rules without notice and comment rulemaking and without establishing “good cause,” in violation of the Administrative Procedures Act (APA). The plaintiffs’ additional arguments include:

  • An injunction is necessary to maintain employment-based immigration programs and preserve thousands of jobs that are essential to the economy;
  • COVID-19 is just a pretext for the adoption of these rules because both have been on the table since 2017 when the Trump Administration took office;
  • The new H-1B definitions are at odds with the relevant statutes;
  • There was no good cause for bypassing the usual notice and comment period, especially when the rules could cost employers as much as $200 billion;
  • The Administration’s contention that COVID-19 has created an unprecedented economic cataclysm that requires these interventions is contradicted by Trump’s tweets contending that the economy is booming;
  • There is no evidence these rules will protect U.S. workers because unemployment is low in high tech, the industry that uses the lion’s share of H-1B visas; and
  • The wages set by the DOL rule do not match reality and are just a poison pill meant to ruin the H-1B and PERM programs.

The Chamber plaintiffs further argue that the Administration once again has failed to adequately consider the reliance interests involved.

As of 2019, DHS estimated that there are 580,000 workers in H-1B status. Many of those have left their homes abroad, bought homes, and built families and lives in the United States in reliance on a stable immigration system that now could be turned upside down. Employers have built facilities and business strategies based on settled expectations about the U.S. immigration system.

The plaintiffs ask the court to enjoin implementation of both rules.

Jackson Lewis attorneys will follow these suits and provide updates as soon as they become available. The DOL Wage Rule has already gone into effect and, absent an injunction, the DHS H-1B Rule will go into effect on December 8, 2020.