The Department of Homeland Security has announced that it will be extending Haitian Temporary Protected Status (TPS) for 18 months, until November 2022. It also has officially set out the application procedures for Burmese TPS, which the Secretary of DHS announced in March 2021, but had not yet issued implementing instructions.

Based on pending litigation, Haitian TPS had been extended through October 4, 2021. With the new announcement, Haitians who have been in the United States continuously since May 21, 2021, will be eligible to apply for, or extend, TPS until November 2022. Approximately 55,000 Haitians currently hold TPS, which was initially designated in January 2010 following the devastating earthquake in Haiti. That TPS designation was extended several times until in January 2018, when DHS issued a Federal Register notice announcing termination of Haiti’s TPS designation. However, due to court injunctions, TPS remained in effect for those already approved. It is estimated that more than 100,000 additional Haitian nationals will now be eligible for the 18-month designation. DHS Secretary Alejandro Mayorkas decided to extend Haitian TPS because that country “is currently experiencing serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic.” Lawmakers from both sides of the aisle had been urging the Biden Administration to extend TPS protections for Haiti.

In March 2021, Secretary Mayorkas announced that, due to increasing oppression and human rights violations following a military coup, individuals from Burma would become eligible for TPS for an initial 18 months, through November 24, 2022. On May 25, 2021, DHS issued a Federal Register notice setting out applicable eligibility criteria and the application process.

Those who previously resided in Burma may apply for TPS if they meet the general eligibility requirements and if:

  • They have continuously resided in the United States since March 11, 2021 (when Burmese TPS was announced); and
  • They have been physically present in the United States since May 25, 2021.

USCIS estimates that 1,600 people will be eligible for Burmese TPS. Those who are eligible also will be able to apply for employment authorization and travel authorization. The registration period for TPS will run for 180 days, from May 25, 2021, through November 22, 2021.

In conjunction with Burmese TPS, DHS also is allowing Burmese students in F-1 status who are experiencing economic hardship to work an increased number of hours while school is in session.

If you have any questions about Haitian or Burmese TPS, Jackson Lewis attorneys are available to assist. Updates will be provided when the details on the Haitian TPS extension are published in the Federal Register.

 

The Trump-era proclamation that would have kept immigrants who could not provide evidence of health insurance within 30 days of coming to the United States has been revoked by President Joe Biden. The move is in accordance with his prior executive order directed at “restoring faith” in the immigration system and to emphasize his administration’s commitment to expanding access to healthcare.

The proclamation was meant to go into effect on November 3, 2019, but was blocked by an injunction issued by the U.S. District Court in Portland, Oregon in Doe v. Trump. Thus, the policy was never implemented but was not rescinded until now. Advocates argued that the policy would have affected approximately two-thirds of intending immigrants.

In issuing the healthcare proclamation, the Trump administration reasoned that new immigrants without health insurance would create a financial burden on the U.S. healthcare system. However, a Tufts University School of Medicine study found that most immigrants arriving in the United States are healthier than most U.S. citizens and do not access as much healthcare as native-born Americans. The study also showed that immigrants who do eventually obtain health insurance, in effect, subsidize healthcare costs for U.S. citizens because they pay premiums but do not draw as much out of the system.

President Biden’s new proclamation is just one in a series of proclamations undoing Trump-era policies, intending to restore faith in and fairness of the U.S. immigration system. Others include the elimination of the public charge rule and the elimination of a rule that prevented undocumented college students from receiving federal pandemic relief for food and housing.

Jackson Lewis attorneys are available to provide information and assistance regarding all the new Biden Administration proclamations affecting immigration.

The effective date of the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigration and Non-Immigrants in the United States” (Prevailing Wage Rule) related to H-1B, H-1B1, and E-3 work visa cases, as well as for PERM cases, is delayed to November 14, 2022. The Biden Administration states that it continues to review the rule.

However, the administration has released the implementation schedule. This should allow employers to prepare and strategize for what undoubtedly will be some sort of wage increase.

Background

In October 2020, the Trump Administration issued the Prevailing Wage Rule as an Interim Final Rule (IFR) that would have significantly raised prevailing wage requirements for H-1B, H-1B1, and E-3 work visa cases, as well as for PERM cases. The wage increase was so substantial and quick that employers would have had difficulty hiring entry level workers, who constitute approximately 60 percent of all H-1B and E-3 employees. The IFR was enjoined by a court. In response, the Trump Administration issued the rule again – this time as a final rule following the Administration Procedures Act  Notice and Comment process. The final rule was set to take effect on March 15, 2021.

Soon after the Biden Administration came into office, and in accordance with its directive that regulations not yet in effect be reviewed for questions of fact, law, and policy, the final rule’s implementation was delayed for 60 days from March 15, 2021, until May 14, 2021. With the latest announcement, the effective date is being pushed out for another 18 months.

Implementation Schedule

The current prevailing wages will remain in effect until December 31, 2022.

There are two sets of transition dates. The first is for most H-1B and E-3 visa workers and is a two-step transition. The second is a four-step transition for foreign workers who are on the permanent residency track. These individuals are beneficiaries of approved I-140 immigrant visa petitions or are eligible for extensions of H-1B status beyond the six-year limit because they have certain pending green card cases. In other words, there is a lengthier transition period for foreign nationals who have been in the United States longer and who have more of a reliance in the current prevailing wages.

Two-Step Transition

  • Current prevailing wages would remain effective through December 31, 2022
  • January 1, 2023, to December 31, 2023, the prevailing wage would be 90% of new prevailing wage
  • January 1, 2024, the prevailing wage would be set at the full new prevailing wage

Four-Step Transition

  • Current prevailing wages would remain effective through December 31, 2022
  • January 1, 2023, to December 31, 2023, the prevailing wage would be 85% of the new prevailing wage
  • January 1, 2024, to December 31, 2024, the prevailing wage would be 90% of the new prevailing wage
  • January 1, 2025, to December 31, 2025, the prevailing wage would be 95% of the new prevailing wage
  • January 1, 2026, the prevailing wage would be set at the full new prevailing wage

We will continue to provide updates as they become available. If you have questions about how to develop wage strategies for H-1B, H-1B1, E-3, and PERM cases, please reach out to your Jackson Lewis attorney.

The Biden administration is breathing life into the International Entrepreneur Rule (IER). It has announced that the IER will be launched anew, because it will “strengthen and grow our nation’s economy through increased capital spending, innovation, and job creation.”

Although there were stops and starts, the IER was never actually eliminated by the Trump administration. Instead, it was criticized and largely ignored.

The purpose of the IER is to improve the nation’s economy by making it possible for certain promising start-up founders and entrepreneurs to begin growing their companies in the United States. The IER amends the regulations on discretionary parole to do so.

A qualifying entrepreneur will be paroled into the United States for an initial 30-month period (with a possible extension) and will have work authorization incident to status. To be eligible, an applicant:

  • Must have a substantial (at least 10 percent) ownership interest in the start-up; and
  • Must have an active and central role in the operations and future growth.

The entity:

  • Must have been recently created (within five years of the application); and
  • Must prove that it has significant investment from qualified and established U.S. investors (at least $250,000) or the receipt of significant awards or grants from federal, state, or local governments (at least $100,000).

USCIS is ready for applications and the administration is planning a public relations campaign, including information sessions and outreach activities, to publicize the IER opportunity. The regulations can be found at 8 CFR 212.19 and the Application for Entrepreneur Parole form is on the USCIS website.

More than 50 percent of start-ups in the United States with a $1 billion valuation were founded by at least one immigrant. The United States is a popular destination for start-up founders, but many other countries (including Canada, the United Kingdom, China, Japan, Israel, Germany, Australia, and New Zealand) are competing to entice entrepreneurs to their shores. Other countries have sought to take advantage of the Trump administration’s criticisms of the IER and less hospitable approach to legal, employment-related immigration. Reaffirming the IER is an important step to the United States meeting the competition.

If you have any questions about the IER, Jackson Lewis attorneys are available to assist you in strategizing and submitting applications.

President Joe Biden’s American Citizenship Act of 2021, introduced in Congress in February, would provide large-scale immigration reform. But it will be difficult to pass such a comprehensive bill.

The last time comprehensive immigration reform made it through Congress was in 1986, during the Reagan Administration (although another, smaller bill passed in 1990, during the Bush Administration). Given that outlook, the administration has developed a “multiple trains” strategy – prioritizing certain pieces to move through Congress.

Legislation to protect “Dreamers” could be a successful carve-out. Of course, the idea of passing a separate measure to protect Dreamers is not new. Congress has tried to pass legislation for permanent relief for these individuals close to a dozen times since 2001. While these bills have generally garnered bi-partisan support, they have never passed. That is why President Barack Obama instituted the Deferred Action for Childhood Arrivals (DACA) Program as a stop-gap measure in 2012. DACA has managed to survive despite the Trump Administration’s efforts to end the program. But DACA still leaves Dreamers in limbo without a long-term solution.

There are two bills to help the Dreamers in Congress: the Dream Act of 2021 (the Senate bill) and a version of that act which is part of the American Dream and Promise Act of 2021 (the House bill). Within 15 days of being introduced, the House bill was passed in the House with a 228-197 vote. The House bill has more lenient terms for Dreamers, but both bills would provide a path to citizenship for Dreamers, with several differences in terms of eligibility.

  • The Senate bill sets the age of arrival at 17 years old or younger. In the House bill, the age limit is a bit more lenient – 18 or younger.
  • The Senate bill requires continuous presence for four years prior to the bill’s enactment. The House bill instead requires physical presence since January 1, 2021.
  • Both bills have a period of conditional permanent residence (CPR), which would include work authorization: eight years for the Senate bill and 10 years for the House version. CPR leads to Legal Permanent Residence and ultimately naturalization.
  • Both bills have disqualifying criminal convictions and exclude crimes related to lack of immigration status. But there are some differences. For instance, the House bill excludes minor traffic offenses, certain marijuana-related crimes, nonviolent civil disobedience, and domestic violence if related to victimization.

Additionally, the House bill has a secondary review process giving DHS the discretion to deny applications from individuals deemed to be threats to public safety. The House bill also would repeal the 1966 law penalizing states granting in-state tuition to Dreamers, allow Dreamers to access federal financial aid, and allow Dreamers deported under the Trump Administration to apply for relief from outside the U.S.

It has been estimated that the Senate bill would help 2 million Dreamers, while the House bill would help 3 million.

 

 

The Social Security Administration (SSA) has stated that it has discontinued mailing No-Match letters (also known as EDCOR notifications) to employers.

SSA stated that it plans to focus instead on making it easier for employers to fix errors electronically through its Business Services Online Portal.

Immigration advocates and many employers welcomed the announcement, particularly as businesses begin rehiring employees who may have been terminated over the past year due to the COVID-19 pandemic.

No-Match letters are notifications that an individual employee’s W-2 form does not match SSA’s records. Beginning in 2018, SSA restarted the practice of sending No-Match notifications to employers where employee records generated a mismatch. Receipt of a No-Match letter does not by itself mean the employee was working illegally or using a fraudulent Social Security card. Mismatches might be due to administrative errors, misspelled names, reversed numbers, or name changes (such as due to marriage). Nonetheless, employers, upon receipt of the EDCOR No-Match notification, were expected to take the appropriate actions – checking for errors in records and notifying the employee to resolve the issue with SSA. Employers were advised not to take adverse employment action against “noticed” employees solely due to a No-Match letter. Employers had to walk a narrow path – fearful that a No-Match letter puts them on notice that an employee might not have valid work authorization but, at the same time, hesitant to take any adverse action that could raise allegations of discrimination or document abuse under the law.

In announcing its decision to discontinue EDCOR letters, SSA said it will look for new ways to educate employers and update its software to inform employers instantly of errors in wage reports. SSA also will educate employees about the importance of accurate SSA records and how to take advantage of its online system to manage their personal records. If wages are not accurately reported, employees can lose out on future Social Security benefits.

SSA did not issue a formal public announcement about the end of No-Match letters; however, it was published on the SSA website under “Educational Correspondence to Employers” and stated:

At present, we are discontinuing EDCOR letters to focus on making it a better, easier, more convenient experience for employers to report wages electronically. We also will continue to seek out new opportunities to educate employers.

Please contact a Jackson Lewis attorney with any questions about SSA’s announcement or how your business may be affected.

USCIS expects to suspend biometrics requirements for H-4, L-2 and E-1, E-2, and E-3 Form I-539 applications beginning May 17, 2021, for at least 24 months. It will retain the discretion to require biometrics on a case-by-case basis.

The suspension is intended to eliminate the adjudication backlog that has prevented H-4 and L-2 spouses from receiving Employment Authorization Documents (EADs) in anything close to a timely fashion.

The suspension is expected to apply to these categories of Form I-539 applications if:

  • The application is pending as of May 17, 2021, and a biometrics appointment notice has not been received; or
  • The application is received by USCIS between May 17, 2021, and the expiration date of the suspension.

How USCIS will handle biometrics fees is not clear but guidance is expected.

Notice of the proposal came in a declaration from USCIS Service Center Operation Directorate Associate Director Connie L. Nolan in Edakunni v. Mayorkas, a litigation pending in federal district court in Seattle.

Background

In 2019, biometrics requirements were imposed on Form I-539 applications. This resulted in delays in processing H-4 and L-2 extensions and the dependent EAD applications. When the COVID-19 pandemic struck and Applications Support Centers that process biometrics closed, the delays mounted. On top of that, there were even printing delays. It was taking so long to get H-4 and L-2 EADs approved that individuals were losing their jobs and their benefits while waiting for the cards – even if they applied the full six months before their cards expired.

Suggested Changes

About 30 companies, including many large technology firms, wrote to USCIS on March 22, 2021, with some ideas on how to eliminate the current problem hamstringing them and many of their employees. They asked the Biden administration to consider the following:

  • Rescind the 2019 biometrics collection policy for EAD applicants because it is largely redundant. Most applicants have had biometrics collected as part of a consular visa application or another benefit application.
  • Provide automatic extensions of employment authorization for timely filed EAD applications as is done for TPS (Temporary Protected Status) EAD applications.
  • Allow applicants to file EAD renewal applications more than six months before their current EAD expires, giving USCIS more flexibility in terms of adjudication.

For now, USCIS appears to have chosen the first option on a temporary basis.

If you have questions about how the expected suspension will affect H-4 or L-2 EADs for spouses, Jackson Lewis attorneys are available to assist.

The entry of nonimmigrants who were physically present in India during the 14-day period preceding their attempted entry will be suspended beginning 12:01 a.m. EDT on May 4, 2021, according to President Joe Biden’s April 30 proclamation on risk of transmitting COVID-19. Anyone on a flight that departed for the United States prior to that time is not subject to the proclamation.

The United States has adopted 14-day entry-suspension proclamations for many countries (each slightly different) due to the COVID-19 pandemic. Like the others, the India restriction:

  • Will remain in effect until terminated by the president (the situation will be reviewed in 30-day intervals); and
  • Exempts:
    • U.S. citizens and Legal Permanent Residents;
    • Spouses, parents, and legal guardians, siblings, and children of U.S. citizens and legal permanent residents;
    • Members of the U.S. Armed Forces and their spouses and children;
    • Individuals on diplomatic visas or travelling under the United Nations Headquarters Agreement;
    • Individuals entering to further important U.S. law enforcement objectives or whose entry would be in the national interest.

One difference from similar proclamations issued by the previous administration is that this one refers to the affected nonimmigrants as “noncitizens,” rather than “aliens,” and adds “noncitizen nationals” (individuals with ties to American Samoa including Swain’s Island) to the list of those exempted.

Please reach out to your Jackson Lewis attorney for assistance regarding eligibility for exemptions or strategies to employ for individuals who are subject to any of the 14-day restrictions by virtue of residing in China, Iran, the United Kingdom, Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and, now, India.

White House Press Secretary Jen Psaki announced today that based upon CDC advice, India will be added to the list of countries subject to the 14-day travel restriction rule.  It is reported that the new rule will go into effect on Tuesday, May 4, 2021 at 12:01 am and that airlines and Congress have already been informed.  It appears that like the other 14-day restrictions, the India restriction will not apply to US citizens, US Legal Permanent Residents or others with exemptions.

Travelers who can enter the United States from India will be subject to the same testing restrictions as all other international travelers.

Jackson Lewis will provide updates as soon as they become available.

The COVID-19 pandemic has forced DHS to delay full enforcement of the REAL ID law from October 1, 2021, to May 3, 2023, the agency has announced.

The REAL ID law requires every air traveler 18 years or older to show genuine REAL ID-compliant identification documents at airport security checkpoints for domestic travel. Those under 18 must be travelling with an individual who has acceptable documentation.

As air travel continues to pick up, full enforcement of REAL ID is being extended by 19 months to May 3, 2023. This is good news for air travelers who have not yet been able to obtain REAL ID-compliant driver’s licenses or another TSA-acceptable forms of identification.

Secretary of Homeland Security Alejandro Mayorkas announced the extension, explaining: “As our country continues to recover from the COVID-19 pandemic, extending the REAL ID full enforcement deadline will give states needed time to reopen their driver’s licensing operations and ensure their residents can obtain a REAL ID-compliant license or identification card.”

While all 50 states (and most U.S. territories) are prepared to issue REAL ID driver’s licenses and identification cards, many have had to extend driver’s license renewal deadlines and switch to appointment-only scheduling because of COVID-19 restrictions. In its announcement, DHS stated, due to the pandemic, only 43 percent of state-issued driver’s licenses and identification cards are REAL ID-compliant.

The REAL ID Act was passed by Congress at the recommendation of the 9/11 Commission in 2005 as a way to improve security. Other forms of compliant documents for boarding domestic flights include:

  • U.S. passport or U.S. passport card
  • DHS trusted traveler card (Global Entry, NEXUS, SENTRI, and FAST)
  • U.S. Department of Defense ID, including IDs issued to dependents
  • U.S. permanent resident card
  • Border crossing card
  • DHS-designated enhanced driver’s license
  • Federally recognized, tribal-issued photo ID
  • Foreign government-issued passport
  • Canadian provincial driver’s license or Indian and Northern Affairs Canada card
  • U.S. Citizenship and Immigration Services Employment Authorization Card (I-766)

REAL ID-compliant driver’s licenses have a star at the top of license.

If you have questions about REAL ID, Jackson Lewis attorneys are available to assist you.