Secretary of Homeland Security Alejandro N. Mayorkas announced an 18-month extension and re-designation of Somalia for Temporary Protected Status (TPS) through March 17, 2023.

The Secretary stated, “Three decades of conflict in Somalia, along with natural disasters and disease outbreaks, have worsened an already severe humanitarian crisis.” Somalia has been dealing with violence, drought, flooding, and food insecurity along with the additional challenges to their healthcare system due to COVID-19.

The approximately 450 Somali nationals in TPS in the United States will be able to extend their status. The re-designation will allow an estimated 100 additional individuals who have resided in the United States continuously since July 19, 2021, to file initial applications for TPS protection. DHS has not announced the particulars, but current and new beneficiaries will have to apply during a 60-day registration period and will be able to apply for employment authorization and travel authorization.

The specifics regarding the application process should be announced in the Federal Register soon. It is important not to attempt to file any applications before that notice is published.

TPS is a form of humanitarian relief. DHS may designate countries for TPS due to temporary conditions that prevent nationals from safely returning home or that prevent countries from being in a position to handle repatriation adequately.

Jackson Lewis attorneys will provide updates as they become available.

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Please reach out to your Jackson Lewis attorney with any question about employees on DACA.

 

Yemeni Temporary Protected Status (TPS) will be extended for 18 months, until March 3, 2023, according to an announcement from Secretary of Homeland Security Alejandro N. Mayorkas.

The Secretary decided to extend and re-designate Yemen for TPS because, due to “ongoing armed conflict,” the country “continues to experience worsening humanitarian and economic conditions,” including “lack of access to food, water, and healthcare; large-scale destruction of Yemen’s infrastructure; significant population displacement; an ongoing cholera outbreak since 2016; and the COVID-19 pandemic’s worsening of a dire economic and humanitarian situation.”

TPS is granted when conditions in a country temporarily prevent nationals from safely returning to their home country or when the country cannot handle their return due to conditions on the ground.

Current Yemeni TPS holders will need to re-register and apply for extensions of employment authorization (EADs) during the 60-day registration period that runs from July 9, 2021, through September 7, 2021, to maintain TPS and employment authorization. Eligible Yemenis who do not yet have TPS may submit an initial application between July 9, 2021, and March 3, 2023. One of the eligibility criteria for an initial application is showing continuous residence in the United States since July 5, 2021.

Because of delays in adjudicating EAD applications, Yemeni TPS holders who have EADs that expire on September 3, 2021, and have filed timely renewal applications are eligible for an automatic extension of EAD validity for 180 days – until May 2, 2022. Anyone with a pending EAD application does not need to re-apply. Once the individual’s case is adjudicated, the EAD will be renewed until March 3, 2023, based upon Secretary Mayorkas’ recent announcement.

According to the Department of Homeland Security, there are approximately 1,700 current beneficiaries of Yemeni TPS in the United States. Close to 500 others will be eligible for initial TPS applications. Work limits on Yemeni students will also be relaxed. DHS also announced that it will provide relief to Yemeni students in the United States. Those in F-1 status will be allowed to request employment authorization to work increased hours.

For questions about how the re-designation and extension may affect your employees and how to correctly prepare Form I-9 Employment Eligibility Verifications, please reach out to your Jackson Lewis attorney. You will also find a tool that provides more information on TPS work authorization on our website.

 

In Washington federal court, H-4 and L-2 spouses are continuing their fight to end the delays in approving visa extensions and work authorization – some of which are taking over a year to adjudicate. The plaintiffs in Edakunni v. Mayorkas are asking the court to decide whether this constitutes an unreasonable delay.

The plaintiffs contend USCIS is not using its workforce effectively and is continuing adjudication delays to force more petitioners and applicants to pay for premium processing and, thus, help USCIS with its budgetary problems. The government counters that the delays are basically due to the disruptions caused by COVID-19 and that the harm suffered by the plaintiffs is “purely economic harm and does not implicate human health or welfare” – therefore, is not unreasonable.

Leading companies and organizations, along with the U.S. Chamber of Commerce, filed an amicus brief in the case, noting the delays in EAD adjudications are “directly and indirectly” affecting the economy. The companies argued that, when the highly educated and highly skilled spouses of the 580,000 H-1B and 75,000 L-1 visa holders cannot obtain work authorization, all of these individuals will ultimately decide to leave the United States and take their talents to other countries. The companies also explained that the costs are not “purely economic.” Many visa holders have made “irreversible life decisions” about housing and having children and “indeterminate gaps in employment authorization” are leading to increased anxiety and depression among those affected.

Meanwhile, the American Immigration Lawyers Association (AILA) sent a letter to USCIS in March 2021 with suggestions on how to deal with the delays:

  • Eliminate unnecessary biometrics;
  • Grant automatic extensions for timely filed EAD applications; and
  • Allow earlier filing of EAD renewals.

In May, USCIS eliminated the biometrics requirement for some applications, including H-4 and L-2 applications, in response to a declaration in Edakunni, but none of AILA’s other recommendations have been adopted and the delays continue.

Jackson Lewis attorneys will provide updates as they become available.

Essential travel restrictions in response to the COVID-19 pandemic, first instituted in March 2020, between the United States and Canada (and Mexico), will continue until July 21, 2021, or be lifted sooner for fully vaccinated individuals. This is welcome news for communities on both sides of the Northern Border that have been feeling the familial and economic pain.

Not only are Canadians and Americans missing their family members and friends who live on the other side of the border, but many of the small U.S. towns along the Northern Border have suffered from the disruption of “a symbiotic relationship” with Canadian consumers. Because prices on common consumer goods such as gasoline and milk are considerably lower in the United States, Canadians used to be able to simply cross the border for purchases. But due to travel restrictions, sales have dropped off precipitously. Canadians used to have items shipped to U.S. border towns to avoid the high cost of international shipping to Canada. But since they can no longer easily cross the border to pick up their packages, mailbox service firms are flooded with goods that have not been picked up or are simply losing money every month for lack of business. Although large chain stores are better able to absorb these temporary losses, small businesses cannot, and they are anxious to have the restrictions lifted.

There is hope, however, that the restrictions are easing. Working groups have been established to study the issue, but Prime Minister Justin Trudeau has said that restrictions will not be lifted until 75 percent of Canadians are fully vaccinated. Canada’s chief medical officer has estimated that if vaccinations continue at current rates, that goal may be reached within weeks. Further, as of 11:59 p.m. (EDT) on July 5, 2021, restrictions on fully vaccinated individuals (who are otherwise eligible to enter Canada, i.e., not subject to essential travel restrictions) will be eased. Fully vaccinated individuals who have had the Pfizer, Moderna, AstraZeneca, or Jansen (Johnson & Johnson) vaccines will no longer need to quarantine, participate in a mandatory hotel stay, or take COVID-19 tests eight days after their arrival if they meet the eligibility requirements. Whether they do or not will be decided at the border.

To qualify for the “fully vaccinated” exemption, travelers must, among other things:

  • Submit COVID-19-related information into ArriveCAN in advance of arrival;
  • Meet pre- and on-arrival test requirements;
  • Be asymptomatic;
  • Have an acceptable quarantine plan (in case quarantine is necessitated); and
  • Carry written proof of vaccination in English or French (or with a certified translation).

A detailed outline of the requirements is on the Government of Canada website.

Please reach out to your Jackson Lewis attorney with any questions about continuing COVID-19 travel restrictions.

To help employers dealing with labor shortages due to the limits on H-2B temporary, seasonal visas, a new rule published by the Department of Labor (DOL) increases the H-2B numerical limits. DOL also released a rule that allows H-2B nonimmigrant workers already in the United States to begin work immediately with a new employer after an H-2B petition has been filed if it is supported by a valid Temporary Labor Certification (TLC) received by USCIS even if it is not yet approved.

The new rules do not apply to employees who are continuing to work with the same employer. Those employees are not “portable,” instead they are entitled to keep working for up to an additional 240 days if the extension of stay was timely filed.

Portability for workers changing employers applies if:

  • The H-2B extension was received before May 25 and is pending on May 25, 2021; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021.

First, the new employee may be employed for up to 60 days beginning on the employment start date of the petition or May 25, 2021, whichever is later.

Second, the 60-day period begins on the Received Date of the Form I-797, Notice of Action, acknowledging receipt of the petition or the employment start date, if later than the receipt date.

Completing a Form I-9, Employment Eligibility Verification, for H-2B portability requires:

  • An unexpired Form I-94, Arrival/Departure Record indicating H-2B status and the employee’s foreign passport constitute a List A Document
  • In Section 2, List A enter:
    • Unexpired foreign passport information
    • Unexpired Form I-94 information
    • Enter “60-Day Ext.” and the date extension of stay petition was submitted to USCIS in the Additional Information field
  • Employment authorization must be reverified in Section 3 by the end of the 60-day period or when a decision is received from the USCIS, whichever is sooner.

If USCIS denies the petition or the new petition is withdrawn by the employer before the 60-day period expires, USCIS will automatically terminate the worker’s employment authorization 15 calendar days after the denial or the withdrawal.

Although the new allotment of H-2Bs have been snatched up, there are still some H-2B visas available for employees from the Northern Triangle countries. If those are not all allotted by July 8, 2021, the remaining visas will be released by the end of July.

If you have questions about the I-9 process for H-2B workers, please reach out to your Jackson Lewis attorneys. We will continue to provide updates as they become available.

For more information on H-2B petitions, see the new H-2B Employer Data Hub.

While the news on the EB-5 investor visa appear promising, Congress has still failed to reauthorize the EB-5 regional center program beyond its June 30, 2021, sunset date.

Reduced Minimum Investment Amount

A federal district judge has struck down the 2019 EB-5 “modernization” regulation, finding the rule was invalid because it was enacted by DHS officials who were appointed to their posts in violation of the 1998 Federal Vacancies Reform Act (FVRA). Behring Co., the operator of Behring Regional Centers, brought suit against USCIS in 2019 in response to the modernization rule. Ultimately, Behring succeeded in showing the acting DHS secretaries succeeding Kirstjen Nielsen (including Kevin McAleenan) were not properly designated in the order of succession in accordance with the FVRA, and therefore they did not hold the authority to promulgate and ratify the 2019 modernization rule. At this moment, the minimum investment amount in a Targeted Employment Area is $500,000.

EB-5 Regional Center Program Sunset

Traditionally, the EB-5 regional center programs were tied to Congress’ omnibus spending bill. This means that whenever Congress passes the omnibus bill, the EB-5 regional center program would automatically be reauthorized. While the “Consolidated Appropriations Act of 2021” extended the program through June 30, 2021, it disjointed EB-5 reauthorization from future omnibus bills. This means that Congress must reauthorize the EB-5 regional center program as a standalone bill.

As of June 27, 2021, Congress has not reauthorized the regional center program, and the program faces a sunset date of June 30, 2021. If the program is not reauthorized by June 30, 2021, it can be reauthorized at a later date; however, investing under the regional center program carries certain risks.

Should I Invest $500,000 into an EB-5 project?

The prudent thing to do is to 1) wait to see if USCIS appeals the Behring decision, and 2) wait until USCIS offers guidance on how to proceed with the reduced investment amount in the wake of the Behring decision. If an investor invests into a regional center project after June 30, 2021, the I-526 petition will be held in abeyance for an indeterminate period until Congress takes further action. If Congress does not take any action toward reauthorization, and if USCIS terminated the abeyance policy, the I-526’s will ultimately be adjudicated based on direct job creation; this is because the EB-5 direct investment program is not tied to congressional reauthorization, and therefore is a “permanent” EB-5 pathway.

The “EB-5 Reform and Integrity Act,” introduced by Senators Chuck Grassley (R-Ia.) and Patrick Leahy (D-Vt.) offers an opportunity for long-term reauthorization of the regional center program; the bill provides some crucial changes that would likely safeguard the EB-5 program’s longevity, including five-year authorization for the EB-5 Regional Center Program, protections for innocent investors who have invested into disbarred projects, and increased oversight for regional center programs. Lastly, while direct investors do not have to worry about regional center program reauthorization, they should watch development closely before investing under the lower investment threshold.

Jackson Lewis attorneys are available to answer inquiries regarding this and other visa programs.

The Department of Labor (DOL) has informed a federal court in California that it did not wish to defend the proposed prevailing wage rule, which would impose steep wage hikes, “at the same time that is internally evaluating the propriety of that Rule” in the challenge to stop the agency from changing the prevailing wage rates.

The lawsuit challenges implementation of The Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. Previously, the Trump Administration had planned to implement this new regulation, which would substantially raise required minimum wages for workers under H-1B, H-1B1, and E-3 nonimmigrant visa classification, as well as for PERM-based green card candidates. Many saw this rule as a blow to visa programs that help bring highly skilled workers to or keep them in the United States. In particular, the wage increases would make it increasingly difficult for companies to hire foreign nationals for entry-level positions. In light of these concerns, litigation ensued and an injunction blocked implementation of the rule. Ultimately, the Biden Administration postponed the rule’s implementation until November 2022, while it reviewed the policy and sought more public comment.

The Biden DOL is asking the court to remand the policy back to the agency for further review and “careful consideration.” In addition, it did not oppose vacating the rule for now. In its filing, DOL made clear that its review could result in significant changes to the proposed rule. It noted that it wants to consider the arguments of the litigants and those of many new commentators.

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

Citing the need to adequately assess their potential impact, the Biden Administration seeks to delay, or reverse, in some cases, a triumvirate of rules issued by the previous administration aimed to dramatically change the H-1B process. These include a rule substantially raising prevailing wages, a rule changing the definition of “specialty occupation” and the “employer-employee relationship,” and a rule that would lead to the selection of H-1B cap cases on the basis of wage level – with the highest wage levels prioritized.

The effective date of the prevailing wage rule has been postponed until the end of 2022, while the Department of Homeland Security conducts a careful review.

The rule revising definitions was withdrawn by the Biden Administration.

The third rule, the Modification of Registration Requirement for Petitioners Seeking to File Cap Subject H-1B Petitions (the Modification Rule), has been postponed until December 31, 2021, to allow more time to understand and implement it properly. However, the possibility remains that the rule could go into effect for the FY 2023 H-1B cap lottery. In an effort to further delay or withdraw the rule altogether, U.S. businesses spanning a variety of industries have banded together and brought suit in federal court in Humane Society of New York v. Mayorkas.

The Humane Society plaintiffs include non-profits, start-ups, healthcare concerns, and small businesses. They believe they would be unable to supply needed public services if the rule is implemented in light of their inability to offer salaries above the Level 1 prevailing wage for necessary entry-level positions. The plaintiffs believe that the rule “unlawfully equates salary with value” and, in violation of the statute, makes the H-1B cap program dependent on just one factor: salary. In their complaint, the plaintiffs allege that the rule violates the Administrative Procedures Act and the Immigration and Nationality Act, and that former Acting Secretary of DHS Chad Wolf lacked the authority to implement the rule.

Courts have held that Wolf’s appointment was not proper and, therefore, rules he implemented could not stand. After Kirstjen Nielsen left her post as secretary of DHS in April 2019, until February 2021, when President Joe Biden’s nominee for the post, Alejandro Mayorkas, was confirmed, there were only “acting” secretaries in place. Those appointments, according to different courts, violated the rules in place for filling vacancies, thus rendering invalid the rules enacted during those appointments.

We will continue to provide updates on the Modification Rule and the ongoing federal litigation as they become available. In the meantime, if you have any questions about the rule, please reach out to your Jackson Lewis attorney.

 

Travel restrictions related to COVID-19 have been in place for more than a year. Certain restrictions have been removed, but the ones on travel from Brazil, China, India, Iran, Ireland, the Schengen Zone, South Africa, and the United Kingdom remain in effect. The White House wants to remove more restrictions and has announced it is putting together working groups with Canada, Mexico, the European Union, and the United Kingdom to “chart a path forward, with a goal or reopening international travel with . . . key partners.”

The groups will include experts from the White House COVID-19 Response Team, the National Security Council, and the Centers for Disease Control and Prevention. They will focus on real-time data. But a White House official noted, lifting restrictions will not be happening “today.”

The travel industry, and airlines in particular, has been hoping the United States will act quickly to remove the current COVID-19-based restrictions on travel, so their businesses and the economy in general can benefit from the summer season. Airline officials from the United States and the United Kingdom have been urging the lifting of trans-Atlantic restrictions. But they “do not expect Washington to lift restrictions until around July 4 at the earliest as the administration aims to get more Americans vaccinated.”

At the G-7 meeting, Prime Minister Justin Trudeau and President Joe Biden spoke about travel restrictions on their shared border. The land border is open only to “essential” travel. The essential travel ban has been in effect since March 2020 and keeps being renewed a month at a time. Currently, it is set to expire on June 21, 2021. There was “speculation that the border could reopen as early as June 22.” That does not seem to be in the cards. Trudeau has not wanted to lift restrictions until 75% of all Canadians have had at least one shot of a vaccine – a mark they might meet in July. For now, Canada is working on a phased approach, where the country might first exempt travelers who are fully vaccinated from quarantine rules.

We will provide updates on the possible loosening of travel restrictions as they become available. In the meantime, if you have questions about any of the travel restrictions and need advice about developing strategies for overcoming them, Jackson Lewis attorneys are available to assist you.