H-1B lottery deadlines are fast approaching, and two questions have been plaguing employers:

  1. When does the registration window open/close?
  2. Will the registration process be the same as last year?

With only weeks to go, USCIS has announced that this year’s electronic registration and lottery process will be the same as it was last year. This confirms that changes proposed to make the lottery based on wage levels for H-1B positions will not move forward for this year’s H-1B selection process.

The Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions rule (Modification Rule) that would have prioritized cases based on wage level is under further review, and its effective date has been postponed until at least December 31, 2021. USCIS announced that it needs more time to test, develop, and implement the necessary modifications.

Under the Modification Rule, instead of a random selection, USCIS would select and rank cases based on wage level – starting with Level IV and working down. Because no quotas were set on wage levels, the new rule would increase the selection rate of Level III and Level IV cases. Indeed, most of those case would probably be selected. This would give employers more certainty when petitioning for higher paid workers. On the other hand, employers hiring entry-level workers will have more difficulties. Concerns about this and the effect on the economy were raised by companies and organizations during the initial comment period for the Modification Rule.

It is also not clear whether the Modification Rule, as currently written, will be implemented for next year’s H-1B lottery. USCIS noted, “During the delay, while [it] works through the issues associated with implementation, DHS leadership will also evaluate the [Modification Rule] and its associated policies, as is typical of agencies at the beginning of a new Administration.”

Stay tuned for updates when USCIS confirms the actual registration period (expected to be the first three weeks of March). Jackson Lewis attorneys will provide updates as they become available. In the meantime, please reach out to your Jackson Lewis attorney with any questions about next steps, including how to strategize and determine which employees should be entered into the lottery.

 

 

On the same day his nominee for Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, was confirmed, President Joe Biden signed several Executive Orders regarding immigration, including one that directs complete review of policies.

The first, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” is of particular interest to the business community.  It sets up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment based. This will include a review of the public charge rule, fee increases, and streamlining of the naturalization process, among others. Recognizing the difficulties created over the past four years by the many unpublicized rule, policy, and guidance changes, this Executive Order directs a comprehensive agency review of all immigration-related regulations, orders, guidance documents, policies, and other similar agency actions that impede access to fair and efficient adjudications. It likely will include a review of the policies that led to a 21% denial rate and a 47% Request for Evidence (RFE) rate for H-1B petitions in FY 2020.

The second looks to roll back damaging asylum policies and develop an effective strategy to manage asylum cases across the region.

The third creates a task force to reunify families that were separated at the border.

These latest Executive Orders build on changes already made since January 20, 2021, including:

These Executive Orders and policy announcements are consistent with the administration’s stated goal of creating an immigration system that is more welcoming to immigrants and to the employers who rely on them. President Biden recognizes that “new Americans fuel our economy, as innovators and job creators, working in every American industry and contributing to our arts, culture, and government.”

Jackson Lewis attorneys will provide updates as they become available. Our attorneys are ready to assist with questions regarding changes and strategies.

 

 

 

 

 

On January 29, 2021, the Department of Homeland Security (DHS) announced the extension of Temporary Protected Status (TPS) for Syrian nationals for a period of 18 months until September 2022. This will affect approximately 8,500 Syrians living in the United States – 6,700 of whom are already in TPS and will be able to renew, as well as an additional 1,800 otherwise eligible individuals who entered the United States after August 1, 2016 and will be eligible to make an initial filing.

Acting DHS Secretary David Pekoske decided to extend TPS for Syria because “[t]he Syrian civil war continues to demonstrate deliberate targeting of civilians, the use of chemical weapons and irregular warfare tactics, and the use of child soldiers. The war has also caused sustained need for humanitarian assistance, an increase in refugees and displaced people, food insecurity, limited access to water and medical care, and large-scale destruction of Syrian’s infrastructure.” These are all circumstances that prevent Syrian nationals from returning to their home country safely.

Instructions on how to register, re-register and obtain employment authorization will be posted in the Federal Register and on the USCIS TPS website. Eligible individuals should not submit any forms or payments until those instructions are posted.

On or before July 31, 2022, the DHS Secretary will decide whether to extend Syrian TPS beyond September 2022.

Once again, ICE has announced a further extension of flexibility in its rules related to I-9 compliance. The extension will continue through March 31, 2021.

This means that:

  • Employers may continue to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).
  • The flexibility applies only to employers with workplaces that are operating remotely. ICE reiterates that if employees are physically present at the workplace, no exceptions will be implemented.
  • Any employees onboarded virtually must report for in-person verification once the employer’s normal operations resume (which may be before March 31, 2021) or once the employee is physically present at the work location, whichever is earlier.
  • Employers not eligible for the flexibility, if necessary, may designate authorized representatives to act on their behalf to conduct in-person review of documents.

Jackson Lewis attorneys are available to assist you in establishing I-9 policies and practices to fit your company’s circumstances.

According to a draft scheduled for publication in the Federal Register on February 1, 2021, the Biden administration plans to delay the effective date of the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule (Prevailing Wage Rule) for 60 days while the Department of Labor (DOL) conducts a new comment period and reviews “any questions of fact, law or policy the rule may raise.”

In the final days of the Trump administration, DOL published a rule designed to raise minimum wages for high-skilled workers. With a March 15, 2021, effective date, that rule would start to affect H-1B, H-1B1, and E-3 work visa cases, as well as PERM filings in July 2021. Among other things, Level I and Level II wages moved up a step, making it more difficult to hire entry-level employees.

Jackson Lewis attorneys will continue to follow this rule’s journey through the regulatory process and provide updates as they become available.

On January 25, 2021, the Biden administration withdrew from review the Trump administration’s proposed rule that would have rescinded the H-4 EAD program.

For close to five years, spouses of H-1B workers holding H-4 EADs have been living with uncertainty that their work authorization would be eliminated at any time. In addition to the Trump administration’s proposed rule, there has been ongoing litigation challenging H-4 work authorization.

Approximately 100,000 H-4 EAD holders (mostly women and mostly from India) have been concerned about their ability to continue to work. They and their families have often been hindered from moving forward with their lives in the United States due to the uncertainty. Vice President Kamala Harris, as a Senator, opposed the Trump administration’s attempt to eliminate the rule. In 2019, she wrote on Twitter:

“This is outrageous and will force immigrant women who are doctors, nurses, scientists and academic, among others, to abandon their professional careers. I called on DHS last year to withdraw this proposal and will continue to fight this.”

Employers will no longer have to worry about business disruptions and creating “back-up” plans for valuable employees on EADs. Allowing spouses to work also enables U.S. companies to compete more effectively for high-skilled workers with other countries that allow spouses to work.

Reportedly, President Joe Biden’s immigration reform proposal, among many other things, would authorize employment for spouses and children of all H-1B workers. The current EAD rule authorizes only spouses of H-1B workers in the Green Card process to work.

Jackson Lewis attorneys will continue to follow any developments.

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.