The country dodged a government shutdown at the end of September, but we may be faced with the same problem on December 3, 2021, when Congress will again have to fund the government. Because we often come close to a shutdown (and sometimes shutdowns happen), it is important to remember how a shutdown affects the immigration agencies.

USCIS

Because USCIS is fee-funded, it generally continues working even during a government shutdown. However, there are a few programs that stop because they receive appropriated funds:

E-Verify

Because E-Verify receives appropriated funds, it stops during a shutdown.

It may not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete, or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve Tentative Nonconfirmations (TNCs).

In the past, during shutdowns, E-Verify has suspended the “three-day rule” and extended the time period for resolving TNCs. Employers are advised not to take any adverse action against an employee while an E-Verify case remains in limbo.

Department of Labor (DOL)

DOL would shut down. The FLAG and PERM systems are inaccessible and BALCA goes into a holding pattern. If this were to happen, we would expect DOL to suspend some deadlines. Remember that USCIS cases that require Labor Condition Applications or Labor Certifications such as H-1Bs, E-3s, or H-2Bs will be affected.

Department of State

Like USCIS, visa and passport operations are fee-funded and would continue despite a government shutdown. But certain consular operations can be affected if the post has not collected enough in terms of fees. Given the slowdowns at consulates due to COVID-19, a government shutdown could just add to the problems. Indeed, some consulates with inadequate funding might close except for “life or death” emergencies.

Customs and Border Protection (CBP)

Because CBP staff are “essential workers,” ports of entry continue to operate during a shutdown, but application processing can be affected.

U.S. Immigration and Customs Enforcement (ICE)

ICE continues its enforcement and removal operations. The ICE Student and Exchange Visitor is fee-funded so continues to operate.

If a government shutdown is imminent, Jackson Lewis attorneys are available to assist you in strategizing and planning.

Reacting to a ruling from a federal district court judge in Texas, the Biden Administration proposed a new DACA (Deferred Action for Childhood Arrivals) rule that would strengthen protections for the “Dreamers.”

DACA has been under attack since 2017, when the Trump Administration announced it would terminate the program. Litigation has prevented that from happening, but in July 2021, U.S. District Court Judge Andrew Hanen in State of Texas et al. v. U.S. et al. ruled, primarily on technical grounds, that DACA was illegal. Judge Hanen, recognizing the substantial reliance interests involved, allowed current DACA beneficiaries to continue to review their statuses (at least while appeals were pending), but has prevented the approval of any new DACA applications.

To overcome the argument that DACA was illegal because it was created by President Barack Obama by a memorandum, the Biden Administration is basically recreating the program through the rulemaking process, including a 60-day comment period. The eligibility requirements are the same as in the old rule. Applicants:

  • Must have come to the United States before turning 16 years of age;
  • Must have continuously resided in the United States from June 15, 2007, to the time of filing;
  • Must have been physically present in the United States on June 15, 2007, and on the date of filing;
  • Must be enrolled in school, have graduated from high school, earned a GED, or been honorably discharged from the U.S. military (including the Coast Guard); and
  • Cannot have any felonies nor certain misdemeanors on their record and cannot pose a threat to national security or public safety.

There are a few new wrinkles:

  • The application process and filing fees are modified;
  • A specific category for DACA Employment Authorization Documents is established; and
  • The rule clarifies that DACA beneficiaries are “lawfully present” for Social Security purposes.

Many comments are expected during the Notice and Comment period, so it may take some time for this new rule to go into effect. In the meantime, legislation continues to be the best way to solidify DACA and give DACA beneficiaries a pathway to citizenship. The Senate Parliamentarian, however, has determined that DACA cannot fit into a reconciliation strategy and getting bipartisan agreement for the Dreamers will be a difficult task.

Meanwhile, the Biden Administration has appealed Judge Hanen’s ruling and those with DACA status may continue to renew their status and their employment authorization when necessary.

Jackson Lewis attorneys are available to assist you with any questions about DACA and DACA employment authorization.

 

In the competitive global video game industry, the United States remains at the forefront despite the recent rise in foreign gaming companies. Some of the most prestigious video gaming studios are located in the United States, and the battle among studios for elite talent to work on their breakout productions is fierce. Studios are forced to look outside the United States to secure talent, and their recruiters need the tools to sift through resumes of not only individuals who are qualified, but who would qualify for U.S. work visas.

Two of our Los Angeles immigration attorneys, Zain Abidi and Ben Lau, published an article recently in Immigration Lawyers Toolbox Magazine on O-1A Visas in Gaming: From the Programmer to the Athlete. Be sure to check it out here (it begins on page 62) and feel free to contact either of them directly to discuss how the O-1A visa may be the right choice for your technology company.

As President Joe Biden travelled to a meeting of the United National General Assembly, the Administration announced that, in early November, COVID-19 travel restrictions would be relaxed for fully vaccinated travelers from all the previously restricted countries: the UK and Ireland, the 26 Schengen Zone countries, Brazil, China, India, Iran, and South Africa.

The details are not yet in place, but the expectation is that the Centers for Disease Control and Prevention (CDC) will recommend which vaccinations will be accepted and how many shots of each will be necessary. Further, a negative COVID-19 test also is expected to be required within 72 hours of boarding and there will be a contract tracing aspect.

The “essential” travel restrictions at the northern and southern land and sea borders are still in effect and have not yet been addressed.

Jackson Lewis attorneys will provide updates as they become available.

New dollar eligibility criteria for investment amounts, qualifying investors, and re-parole considerations under the International Entrepreneur Rule (IER) will take effect on October 1, 2022.

The Biden Administration relaunched the IER in May to grow the economy through job creation. The IER makes it possible for certain promising start-up founders and entrepreneurs to come to the United States through a discretionary parole program and begin growing their companies.

The IER has specific dollar eligibility criteria for investment amounts, qualifying investors, and re-parole considerations. Published in 2017, the IER stated that these amounts would be automatically adjusted every three years by the Consumer Price Index for All Urban Consumers and posted on the USCIS website. On September 13, 2021, the first adjustments were published in the Federal Register.

The new numbers, listed on the USCIS website, will take effect on October 1, 2022, and are as follows:

  • If relying on an investment from a qualifying investor, the amount is increasing from $250,000 to $264,147.
  • If relying on a government award or grant, the amount is increasing from $100,000 to $105,659.
  • The revenue amount for consideration of re-parole is increasing from $500,000 to $528,293.
  • Qualifying investors will need to show aggregate investments of no less than $633,592 (rather than $600,00) over five years. They also will need to show that at least two of those entities created five jobs or generated at least $528,293 (instead of $500,000) in revenue.

The increases are approximately 5.6 percent overall.

If you have questions about the IER parole program, Jackson Lewis attorneys are available to assist.

The Centers for Disease Control and Prevention (CDC) announced that as of October 1, 2021, all applicants for Green Cards must be fully vaccinated against COVID-19.

There are some exemptions from the requirement, but anyone who does not qualify for an exemption and refuses vaccination will be inadmissible.

The COVID-19 vaccine joins the list of other vaccines (including, among others, measles, mumps, polio, tetanus, and diphtheria) that have long been necessary for immigration. Vaccination against vaccine-preventable diseases has been required by federal statute since 1996 for every immigrant seeking entry or seeking to adjust status to legal permanent resident.

For now, the United States has accepted three COVID-19 vaccines, but that may be changed by the Advisory Committee on Immunization Practices (ACIP) as time goes on. ACIP is a group of 15 experts who make recommendations to CDC.

Blanket waivers to the COVID-19 vaccine requirement will be available for:

  • Those too young to receive the vaccine
  • People with medical contraindications
  • Individuals from countries with no or limited vaccine supplies

Waivers will not be available for individuals who have had COVID-19 and may still have immunity.

Religious or moral ground exemptions may be requested from USCIS (as has always been the case).

If you have questions about this new vaccination requirements, Jackson Lewis attorneys are available to assist you.

In June 2021, the U.S. Chamber of Commerce released the America Works Report, which is based on an analysis of more than 20 years of federal jobs and employment data. Among the findings is that there are approximately half as many available workers for every open job and the ratio continues to fall. While the COVID-19 pandemic is certainly part of the conversation, it is only one of many contributing factors to the growing shortage. Please see our full analysis here.

The Department of Homeland Security has issued a notice extending Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan through December 31, 2022.

The automatic extension is intended to ensure continued compliance with preliminary injunction orders that have been entered in the various cases challenging the Trump Administration’s attempted termination of TPS for these countries.

The EADs that will be automatically extended must be category A-12 or C-19 and have one of the following expiration dates:

2017:    July 22, November 2

2018:    January 5, January 22, March 9, June 24, July 5, November 2

2019:    January 5, April 2, June 24, July 22, September 9

2020:    January 2, January 5, March 24,

2021:    January 4, October 4

Beneficiaries from the countries in question also are entitled to an automatic extension of their other TPS-related documentation (I-94 Arrival/Departure Records and I-797 Notices of Action) if they applied to re-register during one of the previous DHS-announced registration periods.

Should litigation be concluded prior to December 31, 2022, with the determination that TPS should be terminated prior to that date, there will be at least a 120-day notice or winddown period. Based on a separate agreement, TPS beneficiaries from El Salvador will be entitled to a 365-day winddown period.

Although those from Haiti are entitled to this new automatic extension, they also are eligible to apply for TPS under the new 18-month TPS designation for Haiti effective August 3, 2021, through February 3, 2023. Eligible Haitians are encouraged to apply for the new designation as soon as possible to ensure they do not have any gaps in authorization.

To demonstrate the automatic extension for I-9 Employment Eligibility Verification purposes, the beneficiary must only show an expired EAD (in the correct category with one of the listed expiration dates) along with the Federal Register notice. Any beneficiary who would like to have an EAD with the actual December 31, 2022, expiration will have to apply for a new EAD and pay the required fee or request a fee waiver.

If you need assistance in determining work authorization or how to complete the employment verification process, please call your Jackson Lewis attorney or reach out to the Jackson Lewis Immigration Practice Group at TPS@Jacksonlewis.com.

Once again, at the last moment, ICE has extended “flexibility” for I-9 employment verification. This time, for four more months, until the end of the year, December 31, 2021, due to continuing COVID-19 precautions.

Employees hired on or after April 1, 2021, who work exclusively in a remote setting are temporarily exempt from the physical inspection requirements associated with Form I-9 Employment Eligibility Verification. This flexibility allows employers to continue to inspect I-9 documents virtually, over video link, or by fax or email. Flexibility will continue until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy is terminated. ICE reiterated that flexibility applies only to employers and workplaces that are operating remotely. If employees are physically present at a work location, flexibility does not apply.

This four-month extension is helpful because many companies have not been able to return to in-office employment on a consistent basis. Nevertheless, it is important to be prepared for the end of the flexibility program by:

  • Keeping track of employees who have been verified virtually, when they will be returning to work, and the deadline for in-person verification; and
  • Identifying and training staff to conduct the necessary in-person reviews.

Flexibility has been in effect since March 2020. Perhaps ICE will decide to adopt flexibility permanently. But, if not, hopefully DHS and ICE will provide sufficient notice of the end of the policy.

Please reach out to your Jackson Lewis attorney for any questions about Form I-9 verification, staff training, or audits of your I-9 forms and program.

Illinois has amended the Illinois Human Rights Act to make “work authorization status” a protected category.

The amendment, Public Act 102-0233, became effective immediately upon the governor’s signing in early-August.

Under the amendment, “work authorization status” is defined as the status of a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States. See Public Act 102-0233. While this anti-discrimination amendment seems to align with federal law, the definition of protected individuals is much broader.

Federal immigration law prohibits citizenship discrimination and protects U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents. The Illinois Human Rights Act also prohibits citizenship discrimination. Federal and Illinois discrimination laws prohibit discrimination based on national origin. The amendment to the Illinois Human Rights Act adds a new category and makes it a violation, among other things, for any employer “to refuse to honor work authorization based upon the specific status or term of status that accompanies the authorization to work.” This law protects any individual with Employment Authorization Documents (EADs), including DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), and DED (Deferred Enforced Departure) beneficiaries, as well as non-immigrants, such as H-4 and L-2 spouses.

Although the amendment states that nothing in the Illinois Human Rights Act “shall require an employer to sponsor, either monetarily or otherwise, any applicant or employee to obtain or modify work authorization status,” it does prevent an employer from making employment decisions based on EAD expiration dates or a particular work authorization status (like DACA, H4 EADs, or TPS). DACA beneficiaries or Dreamers have already brought lawsuits alleging that such actions violate Section 1981 of the federal Civil Rights Act and the Illinois amendment may have been a reaction to those cases.

Illinois employers may need to modify their hiring and I-9 practices to ensure they do not violate the amended Illinois Human Rights Act. Jackson Lewis attorneys are available to assist you with such a review.