Years ago, people employed in manufacturing were seen as bit players in an industrial machine, but no longer. Many manufacturing jobs today require high-level STEM (science, technology, engineering, and math) skills. 

Despite encouraging U.S. students, veterans, and those in underrepresented communities to pursue careers in manufacturing, not enough prospective employees are available. 

Manufacturers have their eyes on foreign national students and others from abroad who have the necessary skills notwithstanding the difficulties of this route. Indeed, it is becoming more difficult because some U.S. immigration law is as outmoded as the idea that employees in manufacturing are easily found in the U.S. labor pool. Any manufacturer looking to employ foreign talent must understand the H-1B visa and its alternatives.

Please see our full publication here.

On June 13, 2023, the Department of Homeland (DHS) announced that it would extend Temporary Protected Status (TPS) for 18 months for current beneficiaries from El Salvador, Honduras, Nepal and Nicaragua.

Soon-to-be-published Federal Register notices will explain the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register for TPS. Indications are that individuals in TPS will need to re-register for TPS in order to be eligible for the extensions. No action should be taken by employers or employees until those notices are available. In conjunction with these re-registrations, it appears that Employment Authorization Documents (EADs) will be automatically extended.  

These four countries have been subject to TPS extensions based upon pending litigation.

Secretary of Homeland Security Alejandro N. Mayorkas stated:

Through the extension of Temporary Protected Status, we are able to offer continued safety and protection to current beneficiaries who are nationals of El Salvador, Honduras, Nepal, and Nicaragua who are already present in the United States and cannot return because of the impacts of environmental disasters . . . .

El Salvador

TPS will be extended until March 9, 2025. Only current beneficiaries who have continuously resided in the United States since February 13, 2001, will be able to re-register.

Honduras

TPS will be extended until July 5, 2025. Only current beneficiaries who have continuously resided in the United States since December 30, 1998, will be eligible to re-register.

Nepal

TPS will be extended until June 24, 2025. Only current beneficiaries who have continuously resided in the United States since June 24, 2015, will be eligible to re-register.

Nicaragua

TPS will be extended until July 5, 2025. Only current beneficiaries who have continuously resided in the United States since December 30, 1998, will be eligible to re-register.

You can find further information about TPS work authorization for all covered countries by using our TPS tool.

If you have any questions about TPS work authorization and how to complete Forms I-9 Employment Eligibility Verification or make E-Verify submissions, Jackson Lewis attorneys are available to assist.

Jackson Lewis will provide updates as they become available.

An alliance of U.S. technical workers has petitioned the U.S. Supreme Court to find the OPT and STEM OPT programs invalid.

Since 2014, WashTech has been challenging the validity of OPT and STEM OPT through litigation. The alliance’s major concern is the allegation that the programs harm U.S. workers. Questions about the validity of these programs seemed to end in October 2022, when the U.S. Court of Appeals for the D.C. Circuit held the programs were valid. That was not the end of the uncertainty. In May 2023, WashTech sought certiorari in the U.S. Supreme Court. A number of amicus briefs have been filed in support of WashTech, including one from several Republican Senators – headed on the brief by Senator Ted Cruz of Texas.

Senator Cruz argues that the Obama-era expansion of OPT is contrary to the limits in the Immigration and Nationality Act (INA) on temporary employment visas, that F-1 visas are valid only for individuals who are bona fide students, and that the ruling below actually undermines other provisions of the INA regarding maintenance of status.

STEM industries continue to struggle to find enough highly skilled workers to fill positions. Recognizing the importance of STEM to the U.S. economy, the Biden administration has made policy changes to expand opportunities for STEM graduates.

Jackson Lewis attorneys will provide updates as they become available.

As demand for talent surges in the fast-growing life sciences industry, U.S. employers continue to face challenges in their search for immigration options to retain their high-skilled foreign workers. Please see our full publication here.

The Department of State has delayed the effective date of the increase in consular fees from May 30, 2023, to June 17, 2023 (to provide a 60-day delay after the final rule was received by Congress).

The most relevant fee increases remain:

Visa TypeCurrent FeeRevised Fee
Non-petition-based nonimmigrant visas: B/1-B/2, F, M and J$160$185 ($25 increase)
Petition-based nonimmigrant visas: H, L, O, P, Q, and R$190$205 ($15 increase)
E nonimmigrant visas$205$315 ($110 increase)

Jackson Lewis attorney are available to assist with any questions or concerns about the new fees, consular processing, or the submission of visa applications at consulates abroad.

With the end of the COVID-19 National Emergency in the United States, the Student and Exchange Visitor Program (SEVP) has reinstated its preexisting policy regarding online classes.

Accordingly, for the 2023-24 academic year (starting fall 2023), students will have to comply with the SEVP’s pre-COVID-19 restrictions. Students will be able to complete the 2022-23 academic year under the COVID-19 flexibilities – including through any summer session.

For F-1 students, per 8 CFR 214.2(f)(6)(i)(G), this means:

No more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class …. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

For M-1 students, per 8 CFR 214.2(m)(9)(v), this means:

No on-line or distance education classes may be considered to count toward an M-1 student’s full course of study requirement if such classes do not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class.

The SEVP always intended its COVID-19 flexibilities to be temporary measures meant to allow students to continue their studies with as little disruption as possible during a time of significant and changing travel restrictions, as well as substantial shifts in teaching methods.

This is just one of a number of COVID-19 flexibilities and restrictions that have terminated with the end of COVID-19 National Emergency, including I-9 flexibility and COVID-19 travel restrictions.

Jackson Lewis attorneys are available to assist with any questions regarding the termination of any and all COVID-19 flexibilities.

Beginning on June 1, 2023, filers submitting PERM Applications for Permanent Employment Certification must submit the revised ETA-9089 in the Foreign Labor Application Gateway (FLAG) system, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has announced.

A U.S. employer hiring a foreign worker and petitioning for that worker to be eligible for lawful permanent resident status must use Form ETA-9089. OFLC will not accept the previous version of Form ETA-9089 after May 31, 2023.

DOL is seeking to streamline the labor certification process with its revised ETA-9089. Filers will be required to enter the Prevailing Wage Determination number, for example, so that information from the prevailing wage can be automatically populated into the ETA 9089.

Problems already have been raised with pre-populating forms, including the inability of counsel to file an ETA-9089 on behalf of a client if the underlying prevailing wage (ETA 9141) had been filed by different counsel. Pre-population also limits the ability to properly describe the worksites. This is particularly important these days given that telecommuting and hybrid work have become ubiquitous. DOL has not indicated whether it intends to address this and other issues before June 1.

Changes observed on the revised form include:

  • The new form asks for the number of employees on payroll in the area of intended employment (the current form asks for total number of employees).
  • The new form includes a question regarding dual representation – Has the employer contracted with an agent or attorney that also represents the sponsored foreign worker?
  • The new form asks for type of worksite location: whether employer’s business premises; employer’s private household; or employee’s private residence.
  • For all worksite locations, the new form asks for the MSA/OES area code and title.
  • The new form reinstates the Kellogg language and asks if employee qualifies for the job opportunity by the virtue of the employer’s alternative requirements. If so, the form asks if the employer is willing to accept any suitable combination of education, training, and experience.

Finally, the new form requires filers to complete an additional appendix and to provide a business necessity justification when affirmatively answering the following:

  • Whether the job opportunity requires the worker to live on the employer’s premises.
  • Whether the job opportunity involves a combination of occupations.
  • Whether proficiency in a foreign language is required or preferred to perform the job duties.
  • Whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.
  • Whether the employer used a credentialing service to qualify the foreign worker’s education or experience requirements.
  • Whether the employer received payment of any kind for the submission of this application.
  • Whether the employer had a layoff in the occupation involved in the application or in a related occupation within the six months immediately preceding the filing of the application in the area of intended employment.

Previously, DOL would raise issues surrounding these questions in a post-filing audit, if at all. Under the revised ETA-9089, employers must provide a justification at the time of filing for any of the above issues to which they are required to answer “yes.” Many employers may be answering in the affirmative to the question on “whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.” Employers commonly require a higher-level degree or more years of experience than what is considered “normal” by DOL. Thus, a large majority of filings will require including a business necessity justification. Employers should be prepared to work closely with their immigration attorneys to navigate the complexities surrounding the revised ETA-9089.

Jackson Lewis attorneys are closely monitoring PERM-related issues. If you have any specific questions regarding these developments, please reach out to your Jackson Lewis attorney.

As of July 1, 2023, all private employers in Florida with 25 or more employees will be required to use E-Verify, the federal government’s database for verifying work authorization. Enforcement of this new E-Verify requirement will begin one year after enactment on July 1, 2024.

These employers also must:

  • Certify E-Verify participation on the company’s first state tax service provider report each year; and
  • Retain proof of the E-Verify verification for at least three years from the date of hire.

Employee leasing companies will be responsible for E-Verify verification, unless the responsibility is transferred to the client company by agreement.

Employers should expect random audits as well as enforcement based upon complaints. Initially employers will have 30 days to cure any noncompliance. Multiple violations within a 24-month period will lead to fines and suspensions.

E-Verify is not new to Florida employers. The Florida law in place since 2021 already required all private employers to use E-Verify or require documentation in accordance with Form I-9, Employment Eligibility Verification, from new hires. Further, most public contractors were subject to E-Verify.

The new E-Verify law is part of a larger, sweeping immigration bill that, among other things:

  • Invalidates out-of-state driver’s licenses issued to people without legal status in the United States;
  • Requires certain hospitals to collect patient immigration status and provide quarterly reports; and
  • Penalizes through business license suspensions and fines the employment of unauthorized workers. Enrollment in E-Verify, however, creates a rebuttable presumption that the employer has not violated the state law that prohibits the employment of unauthorized workers. Employers who use only the Form I-9 process can establish an affirmative defense to the same.

Private employers in Florida with 25 or more employees or those who plan to bid on public contracts should be prepared to comply with the new law by updating their onboarding and new hire practices and registering with E-Verify. It also will be important to train at least one staff member on how to use E-Verify if the employer has not used the system in the past.

Using E-Verify does not mean that employers do not have an obligation to complete I-9 forms for each new hire. Form I-9 employment eligibility verification is and continues to be an independent requirement under federal law.

Using E-Verify allows the Social Security Agency and the Department of Homeland Security to more easily audit a company’s data to determine if normal statistical parameters are met. But, one particular benefit of using E-Verify is that the employer can offer up to two years of STEM OPT to trainees. This can be quite beneficial to employers and foreign students, especially because H-1B visas can be hard to come by.

Jackson Lewis attorneys are available to assist employers in setting up appropriate employment verification policies, conducting internal compliance audits, and training staff.

On May 30, 2023, fees for nonimmigrant visas at all consulates abroad will increase. The increase can be avoided if the visa fee is paid on or after October 1, 2022, and before May 30, 2023, and an interview is scheduled within 365 days of payment. The interview need not take place during the 365 days, only the scheduling must occur.

Here are the updated fees:

Visa TypeCurrent FeeRevised Fee
Non-petition-based nonimmigrant visas: B/1-B/2, F, M and J$160$185 ($25 increase)
Petition-based nonimmigrant visas: H, L, O, P, Q, and R$190$205 ($15 increase)
E nonimmigrant visas$205$315 ($110 increase)

The Department of State’s (DOS) consular operations are funded by the fees collected. Changes in nonimmigrant visa fees are based on a cost-of-service model. DOS recovers the costs incurred for providing these services.

Jackson Lewis attorneys are available to review and assist submission of nonimmigrant visa applications on Form DS-160, Online Nonimmigrant Visa Application.

The last-standing COVID-19-related travel restrictions will soon expire. Bringing the United States in line with most countries around the world, after May 11, 2023, non-citizen, nonimmigrant air passengers need not show proof of being fully vaccinated to board a flight to the United States.

Until May 12, nonimmigrants must still document having a bivalent or monovalent dose of an approved COVID-19 vaccine taken at least 14 days before their arrival in the United States.

In addition, beginning May 12, non-U.S. travelers will be able to enter the United States by land or ferry without providing evidence of up-to-date vaccinations.

In addition to ending the travel restrictions, the Biden Administration also announced that the COVID-19 vaccination requirements for federal employees and federal contractors will end May 11, and the Administration will start the process to end the vaccination requirement for head start educators and CMS (Centers for Medicare and Medicaid Services)-certified facilities.

The COVID-19 public health emergency has been in effect since January 2020. Anticipating the end of the emergency declaration, USCIS already ended the 60-day grace period granted to respond to requests from the agency. On May 4, 2023, DHS and ICE announced that the flexibility to conduct remote verification of documents for Form I-9 purposes will end as of July 31, 2023. Beyond that, USCIS still has discretion to grant measures, including extensions, on a case-by-case basis upon request for those who have been affected by unforeseen circumstances, including a public health emergency. Unforeseen circumstances related to COVID-19 may still fall into this category.

Jackson Lewis attorneys are available to answer any questions regarding travel or COVID-19-related flexibilities, particularly those connected with preparing for the end of flexibility regarding Form I-9 employment verifications.