Although the Biden Administration has taken steps to maintain H-4 EADs for spouses of highly skilled H-1B workers, the program is still in jeopardy. Now, the Biden Administration is representing the Department of Homeland Security (DHS) in defending the H-4 EAD rule.

In 2014, the Obama Administration published the H-4 EAD rule, giving certain H-4 spouses the ability to apply for work authorization. These spouses were married to H-1B workers who were being sponsored for green cards and who were waiting in line, along with their spouses, to get permanent residence, including work authorization. By 2015, a group of technology workers filed a suit in federal court claiming that the Obama Administration had exceeded its authority by granting work authorization to non-citizens without legislation. That case had various starts and stops and ups and downs, but it is now active again. During the Trump Administration, the case was slowed down because it seemed that President Donald Trump was going to withdraw the H-4 EAD rule. Despite many threats, that never happened.

Summary judgment motions have been filed in the lawsuit, and a group of tech giants and trade groups have filed an amicus brief arguing, along with DHS, that there was nothing illegal about the program’s establishment. The companies argue that:

  • Granting spouses work authorization makes it easier to hire and retain highly skilled H-1B workers; and
  • Eliminating H-4 EADs could mean that needed talent would be more attracted to other countries that are more hospitable.

More than 90,000 spouses currently work pursuant to H-4 EADs. Most of these spouses are highly educated themselves and are married to Indian nationals. Further, most of them are women – many of whom have already been negatively affected economically by the COVID-19 pandemic.

The amicus brief explains the problem succinctly:

This is a case of enormous practical consequence: The regulation at issue here—the H4 Rule . . . —provides work authorization to more than 90,000 H-4 visa-holders (spouses of certain H-1B visa-holders), more than 90% of whom are women. Invalidation of this rule would result in these talented individuals being barred from the workplace, forcibly severing tens of thousands of employment relationships across the country. The results would be utterly destructive for the families impacted; by just one measure, about 87% of these families have made crucial life decisions on the promise of H-4 employment, including whether to have a child and whether to buy a house.

Regardless of the result of the summary judgment motions, there will probably be appeals and, with the appeals, more uncertainty. At a time when our economy needs boosting, this uncertainty can prevent new H-1B workers from coming to the United States and prevent those who are already here from making long-term economic commitments. The best solution is legislation.

President Joe Biden has included work authorization for H-4 spouses in his American Citizenship Act of 2021. The Biden Administration has indicated that it is open to passing parts of the legislation where there can be bipartisan agreement. Bills have been previously introduced that would have prevented the rescission of the H-4 EAD rule. Perhaps actually providing H-4 employment authorization will also come to the fore.

Jackson Lewis attorneys will continue to provide updates on this topic.

By tweet, the Department of Homeland Security announced an extension of the travel restrictions at the Northern and Southern land and sea borders until June 21, 2021.  These borders have been closed to “non-essential” travel since March 2020 due to COVID-19.  According to the restrictions:

  • Individuals are not admitted for tourism, sightseeing, recreation, gambling, attending cultural events, or other non-essential purposes.
  • Individual are admitted for “essential” purposes including travel for work, medical reasons, to attend educational institutions, and diplomatic or military-related travel.
  • Citizens and permanent residents of the country they are entering are excepted from the ban.

While these restrictions do not apply to air travel, some families have not been able to see each other for over a year. But, in accordance with its tweet, DHS has stated it is working with Canada and Mexico to “ease restrictions as conditions improve.” Canada’s COVID-19 positivity rate is dropping in some provinces, while infections multiply in others. In the meantime, DOS has issued Level 4 Do Not Travel Advisories for both Canada and Mexico.

Jackson Lewis will provide updates on the travel restrictions as they become available.

Based on the Centers for Disease Control and Prevention’s (CDC) updated guidance, USCIS is opening its doors to “unmasked,” “fully vaccinated” people.

According to USCIS’ new visitor policy:

  • Fully vaccinated people (those who are at least two weeks out from a dose of a single-dose vaccine or the second dose in a two-dose vaccine series) no longer need to wear face coverings in USCIS facilities.
  • Individuals over two years old who are not fully vaccinated must still wear face coverings, and those face coverings must meet USCIS standards.

In addition:

  • Fully vaccinated people with no COVID-19 symptoms who have returned from domestic or international air travel or cruise ship travel in the previous 10 days may enter USCIS facilities.
  • Fully vaccinated people who have been in close contact with anyone known to have COVID-19 in the previous 14 days also may enter USCIS facilities.

This should ease some of the problems that have arisen for those who need to attend USCIS appointments but have also had to travel or have been exposed to someone with COVID-19 – as long as they are fully vaccinated.

Of course, there are still restrictions including:

  • Individuals with appointments may only be accompanied by an attorney, interpreter, parent or legal guardian, dependents listed on the interview notice, or someone assisting a disabled person to allow for social distancing.
  • No guests are allowed at naturalization ceremonies other than individuals assisting disabled persons – again, to allow for social distancing.
  • Those who are feeling sick are told not to come to any USCIS office, but they will be able to reschedule appointments with no penalty.
  • Individuals who have been instructed to self-isolate or self-quarantine within the previous 14 days will not be allowed to enter a USCIS facility.

Jackson Lewis attorneys will continue to provide updates.

ICE announced that I-9 flexibility will be extended again – this time through the whole summer until August 31, 2021.

Since March 2020, companies that have been operating remotely have been able to inspect Section 2 Form I-9 documents virtually, over video link, by fax or via email. In April 2021, the Department of Homeland Security (DHS) clarified that in-person inspection applied only to employees who report to work at a company location on a “regular, consistent or predictable basis.” Employees who work exclusively in a remote setting due to COVID-19 precautions are temporarily exempt from in-person inspection until they undertake non-remote employment on a “regular, consistent or predictable basis.”

While it is good to have this additional three-month break, we still do not know when DHS will terminate this flexibility. Once it happens, there will likely be a “rush” to conduct in-person verification and reverification within three business days, particularly for foreign nationals. Accordingly, companies should consider starting to conduct in-person verifications and reverifications for those hired or reverified on or after March 20, 2020 (when the flexibility started) who were verified remotely. This can be done as employees return to the worksite (whether on a regular basis or not) or it can be conducted by agents selected by the employer. An employer may select any individual as an agent for verification purposes, but the employer will remain responsible for any errors in that process.

To prepare for the end of the flexibility program, employers should:

  • Maintain a list of all employees who were verified virtually, when they will be returning to work, and the deadline for their in-person verification.
  • Determine who will be conducting the in-person verifications and how and when they will be reaching out to the affected employees.
  • Train staff on how to update I-9 forms after the in-person review. After the physical inspection, the employer or authorized representative should note “COVID-19” as the reason for the delayed in-person inspection and “documents physically examined” with the accurate date and the name of the person who conducted the review in the “Additional Information” field in Section 2 of the I-9 or in Section 3 (for reverification), as appropriate.
  • Be on the lookout for special rules regarding I-9s for individuals who are beneficiaries of TPS (Temporary Protected Status) or DED (Deferred Enforced Deportation). These are forms of humanitarian protection for certain immigrants and the government often provides automatic extensions of their employment authorization.

DHS has been asked to provide sufficient notice as to when flexibility will be discontinued, but such notice is not guaranteed.

Jackson Lewis attorneys are available to assist you in preparing for the end of flexibility.

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.