On his first day in office, President Joe Biden signed a memorandum fortifying the Deferred Action for Childhood Arrivals (DACA) policy. His administration also has granted Temporary Protected Status (TPS) to more individuals: those from Venezuela and Burma. Building on this, President Biden also proposed broad legislative immigration reform, including a path to citizenship for DACA (or Dreamers) and TPS beneficiaries, as well as for the 11 million undocumented immigrants currently living and working in the United States. But finding enough bipartisan support for passing broad immigration reform is far from assured. In recognition of that, the administration has adopted a “multiple trains” strategy to move specific pieces of the plan.

On March 18, 2021, the House passed two such bills: The American Dream and Promise Act (“Dream Act”) and the Farm Workforce Modernization Act (“Farm Act”).

The Dream Act would provide a path to citizenship for Dreamers, certain TPS beneficiaries, and Deferred Enforced Departure (DED) beneficiaries, approximately two million people in total. The bill passed the House with a 228 to 197 bipartisan majority. The Farm Act passed with a larger 247 to 174 bipartisan majority. It would allow undocumented farm workers who pass necessary background checks and pay a $1,000 fine to receive temporary legal status. This status could be renewed indefinitely for as long as the individual maintains farm employment. There would also be a path to permanent residency for longtime workers, streamlining of the H-2A visa process, new wage standards, and a mandate for E-Verify for agriculture.

The COVID-19 pandemic brought to the fore the essential nature of the work performed by many DACA, TPS, and DED beneficiaries, particularly in healthcare, as well as work performed by undocumented workers, especially in agriculture, ranching, and the dairy industry. Despite that, some Senators’ concerns about amnesty, asylum policies, and the increase in individuals detained at the Southern border may delay or block the passage of the bills.

Jackson Lewis attorneys will provide updates as they become available.

Some of the inbound international travel restrictions that have bedeviled U.S. employers reportedly are expected to be lifted by mid-May.

This will include restrictions on travel from the UK, Europe, and Brazil, as well as the travel restrictions at the Northern and Southern borders, which were recently continued until April 21, 2021. An anonymous senior administration official said there would be a “sea-change in mid-May when vaccines are more widely available to everyone.”

The administration reviews the travel restrictions weekly. There appear to be two schools of thought: 1) those who are concerned about lifting travel restrictions due to the spread of COVID-19 variants and 2) those who believe that the COVID-19 testing requirements for boarding international flights are sufficient.

The plethora of world-wide travel restrictions has led to confusion and hardships to businesses and individuals, and there is no direct evidence that the travel bans are needed now that COVID-19 testing is widely available.

Industry groups, including the airlines, have been urging the administration to loosen restrictions and rely on “core public health protections, such as the universal mask mandate, inbound international testing requirements, physical distancing or other measure that have made travel safer and reduced transmission of the virus.”

Jackson Lewis attorneys will be monitoring this situation and provide updates as soon as they become available.

Over 40 percent of counties in the United States are experiencing population declines, and the country is experiencing a decline in the working-age population. Together, these demographics, some say, may signal an eventual slowdown of the economy. How to reverse the trend? Immigrants moving to targeted areas could help stem the decline.

Countries such as Australia and Canada have already adopted immigration programs that focus on their particular states’ or provinces’ needs for workers.

In the United States, various internal economic development programs have targeted immigrants for training and have found way to “match” immigrants with local businesses. But these programs are aimed at tapping immigrants who are already in the United States. For at least 10 years, some states have been trying to gain permission to establish their own work visa programs. The American Citizenship Act of 2021 (ACA 2021), proposed by the Biden administration, would provide such an opportunity. One of its many features is a five-year pilot program that would allow states to essentially recruit immigrants from abroad to join particular industries in specific geographic areas.

The ACA 2021 program would allow an additional 10,000 immigrant visas a year based on localized economic development strategies. Labor certifications proving there are not sufficient U.S. workers in the area to fill the need would be required. The bill also would give the Department of Homeland Security (DHS) the authority to adjust the number of green cards available annually based on macroeconomic conditions.

The “heartland visa” program discussed in Congress is similar to the ACA 2021 pilot program. It is also geographically targeted, with communities and foreign skilled workers “opting-in.” The heartland visa program would require communities to provide funding to “welcome” the new immigrants in exchange for the immigrants remaining in the community for at least a certain amount of time. Similar programs have been adopted by states outside the immigration context to welcome new residents to work and build their state economies. A couple of examples include Tulsa, Oklahoma, which has a remote worker program that includes a $10,000 stipend. Newton, Iowa, also offers a $10,000 grant toward purchasing a home to bring residents to the city.

As the country looks toward a post-COVID-19 economy, targeted immigration programs could speed the recovery. Jackson Lewis attorneys will provide updates particularly regarding the progress of the ACA 2021 as they become available.

Syrian Temporary Protected Status (TPS) has been extended until September 30, 2022. DHS announced that the 60-day registration and re-registration period for Syrian TPS and Employment Authorization Documents (EADs) was to begin on March 19, 2021 and run until May 18, 2021. Only those who have been residing in the United States since March 19, 2021 can apply. Full instructions regarding the application procedure can be found in the Federal Register.

Employment authorization will be automatically extended until September 27, 2021 for those who reapply and have current TPS EADs expiring on March 31, 2021. Those who have already re-registered and/or applied to extend their registrations and TPS EADs need not reapply. When their cases are approved, the approval will run until September 30, 2022.

For more information on how to verify or re-verify employment authorization for TPS beneficiaries, please reach out to your Jackson Lewis attorney.

The EB-5 Investor Visa was created by an act of Congress in 1993, and it has proved to be a critical driver in American job creation since its inception.

By some estimates, the program has brought in over $20.6 billion in Foreign Direct Investment (FDI) at no cost to the American taxpayer. The program has undergone a series of drastic changes since November 21, 2019; most significantly the minimum investment amount was increased from $500,000 to $900,000. The minimum investment amount is even higher in non-Targeted Employment Areas ($1.8 million).

With the increase in investment amount, interest in the visa declined significantly. This decline in interest, coupled with a new USCIS policy that led to petitions being adjudicated based on a visa availability approach (as opposed to a first-in, first-out approach) is reflected in the visa bulletin; India is now current in the EB-5 category, and Vietnam and China have progressed significantly.

As the United States looks for options to spur economic recovery in the wake of the COVID-19 pandemic, the EB-5 program, with its job creation requirements, seems like a logical option. However, recent developments have put the program at risk.

EB-5 Authorization

Traditionally, the EB-5 regional center program has been tied to Congress’ omnibus spending bill. This means that whenever Congress passes the omnibus bill, the EB-5 regional center program would automatically be re-authorized. While the Consolidated Appropriations Act of 2021 extended the program through June 30, 2021, it disjointed EB-5 re-authorization from future omnibus bills. This means that Congress must re-authorize the EB-5 regional center program as a standalone bill.

While the benefits of the programs are well known, the EB-5 program has undergone considerable media coverage. Anti-immigration rhetoric is also playing a part in the discussion. Together, this makes EB-5 re-authorization in June 2021 uncertain.

The EB-5 Reform and Integrity Act

Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT) have introduced the EB-5 Reform and Integrity Act. The bill provides for some crucial changes that would likely safeguard the EB-5 program’s longevity. This includes a five-year authorization for the EB-5 Regional Center Program, protections for innocent investors who have invested into disbarred projects, and increased oversight for regional center programs. The EB-5 industry has welcomed the bill, with the understanding that increased oversight will lend more credibility to the program and appease the program’s detractors. The economic effects of the COVID-19 pandemic provide compelling grounds for both re-authorization and reforms, and the program has brought in billions of dollars of investment and created thousands of American jobs.

The Jackson Lewis team will continue to monitor developments in the EB-5 program and provide updates.

Eligible Venezuelans in the United States may now apply for Temporary Protected Status (TPS) according to an announcement made this week by Alexajandro Mayorkas, Secretary of the Department of Homeland Security (DHS). TPS is granted to individuals who cannot return to their home countries safely.  In the case of Venezuela, Secretary Mayorkas stated that the country has been in the midst a “severe political and economic crisis for several years” including a deterioration of democratic institutions, a health crisis, food insecurity, increase in crime and lack of access to basic services. As of now, the TPS designation will last for 18 months until September 9, 2022 and could be extended depending upon the in-country conditions at the time of the next assessment.

Those who wish to apply should do so during the initial registration period: March 9, 2021 through September 5, 2021. Among other elements of eligibility, applicants must meet two specific residency requirements:

  • Continuous residence in the United States since March 8, 2021; and
  • Continuous physical presence in the U.S. since March 9, 2021.

Applicants are also eligible to apply for travel authorization and employment authorization (EADs) that will be valid through September 9, 2022. Full instructions on the applications process can be found in the Federal Register.

One of Donald Trump’s last acts during his administration, on January 19, 2021, was to grant Deferred Enforced Departure (DED) for certain Venezuelans. DED beneficiaries are not subject to removal during the designated time period, and in this case, were eligible to apply for EADs. The DED benefit applied only to individuals who were physically present in the United States on January 20, 2021 and was valid for 18 months until July 7, 2022.

Venezuelans who entered the United States after January 20, 2021 are only eligible for TPS. DHS is encouraging even individuals who already have DED EADs to apply for TPS and TPS EADs during the registration period because TPS will last longer than DED and they may not be able to timely apply for TPS when DED expires.

According to DHS, approximately 323,000 Venezuelans currently in United States are eligible for TPS.  TPS does not lead to legal permanent residence or citizenship.  However, a path to citizenship is one of the things that the Biden Administration has proposed for all TPS beneficiaries.

For questions regarding TPS eligibility and work or travel authorization, Jackson Lewis attorneys are available to assist you. You may also use our online tool to assess TPS eligibility and corresponding eligibility for employment authorization.

Secretary of the Department of Homeland Security (DHS) Alejandro Mayorkas has announced that the public charge rule, put in place by the Trump administration in 2019, is no longer in effect. Instead, DHS will return to its previous policy, which had been in effect for 20 years, since 1999.

In his announcement, Secretary Mayorkas specifically stated that DHS will no longer consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP, also known as food stamps) benefits as part of the public charge inadmissibility determination.

This signals the end of close to two years of confusion over the Trump public charge rule. That rule, criticized as a “wealth test,” made it harder for low-income immigrants and non-immigrants, who might use even non-cash welfare benefits, to obtain admission to the United States. The rule was subject to litigation in various jurisdictions. There were injunctions and stays of injunctions. One month the rule was in effect in some jurisdictions, the next it was not, and then the next, it was in effect again. Applicants for adjustment of status or nonimmigrants were never quite sure if the rule would apply to their applications. The Trump administration public charge policy went twice to the U.S. Supreme Court, which is where it sat until March 9, 2021, when the Biden administration decided to stop defending the policy and asked the Supreme Court to dismiss the case – which it did.

This followed President Joe Biden’s executive order, in February 2021, directing a complete review of immigration policies, particularly the Trump public charge rule, in an effort to restore faith in the legal immigration system and reduce barriers to immigration. Once the review is completed, more changes may be forthcoming.

Jackson Lewis attorneys are available to assist you with any questions regarding the status of the public charge rule.

A noncitizen applying for relief from deportation bears the burden of proving all elements of eligibility for relief, including that a conviction under a divisible state statute does not render the person ineligible for relief, the U.S. Supreme Court has ruled in a 5-3 opinion (Justice Amy Coney Barrett did not participate). Pereida v. Wilkinson, No. 19-438 (Mar. 4, 2021) Clemente Pereida entered the United States illegally approximately 25 years ago. He is married and has three children, one of whom is a U.S. citizen. He was convicted in 2010 under the laws of the State of Nebraska of criminal impersonation, which is a divisible statute that includes four distinct crimes, three involving fraudulent conduct, but one of which, carrying on a business without a license, does not. The case focused on whether Pereida is required to prove definitively that he had not been convicted of one of the crimes that involved fraud.

The government presented a copy of the criminal complaint against Pereida showing that Nebraska had charged him with using a fraudulent Social Security card to obtain employment. Pereida presented nothing to prove the contrary, but argued instead that any ambiguity regarding his conviction should be resolved in his favor.

Justice Neil Gorsuch writing for the Court’s majority did not agree. The majority found that an individual seeking to cancel a lawful removal order has the burden of showing they have not been convicted of a disqualifying offense. Pereida did not carry that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

Justice Stephen Breyer, writing for the dissent, argued that instead of focusing on the burden of proof, the case should have been decided based on the “categorical approach.” Using this approach, a court does not consider the facts of the individual’s conduct but rather whether the conviction necessarily or categorically triggers a consequence under federal law. Any ambiguity would be resolved in favor of the noncitizen. Using this approach, Pereida might have been able to move on to the next step in seeking relief from deportation – showing his removal would impose an “‘exceptional and extremely unusual’ hardship on a close U.S. citizen relative ….”

The majority’s approach allows the fact finder to look to evidence outside the conviction records itself and limits potential relief from removal for long-term noncitizens convicted under divisible statutes. Please contact a Jackson Lewis attorney with any questions.

The ability of foreign students in F-1 status to participate in post-completion Optional Practical Training (“OPT”) in their fields of study is an important aspect of their education–an opportunity that draws many foreign students to U.S. colleges and universities. So when USCIS receipting delays were diminishing these opportunities, foreign students, universities, and advocacy groups reached out to USCIS for a solution. In response, USCIS has announced some flexibility regarding OPT applications received on or after October 1, 2020, through May 1, 2021, inclusive.

The 12 Months Within 14 Months Rule

F-1 students can generally participate in an initial 12-month period of OPT employment after graduating, but that period must be completed within 14 months of the end of their degree programs. Because receipt notice issuance (and subsequent processing) of OPT employment authorization applications (Forms I-765) has been so delayed, some students were missing out on the full 12-month period. To remediate this situation, USCIS will allow the 14-month timeframe to begin on the date that the Form I-765 is approved.

Any F-1 students who receive approvals for less than the time requested because of the 14-month limitation may request a correction of the Employment Authorization Document (EAD) due to USCIS error and a new EAD will be issued.

Timely Filing Rules

Post-completion OPT employment applications must be filed within 30 days of the OPT recommendation being entered into SEVIS and within 60 days of degree completion. STEM OPT extensions must be filed within 60 days of the recommendation’s entry into SEVIS. Due to delays, applicants whose applications were ultimately rejected have not been able to timely refile. To accommodate refilings, until May 31, 2021, USCIS will accept refiled Forms I-765 for OPT or STEM OPT employment authorization as if filed on the original timely filing date if the original application was received on or after October 1, 2020, through May 1, 2021. A new Form I-20 will not be required.

Completing Form I-9 Employment Eligibility Verifications

When an applicant timely files for a STEM OPT extension, the applicant’s current EAD is automatically extended for 180 days. Luckily, the delay in issuing receipt notices does not affect the employer’s ability to update an employee’s Form I-9 Employment Verification in this situation. The applicant only needs to provide the expiring or expired one-year OPT EAD and the most recent Form I-20 with the STEM two-year extension endorsement. Even if the applicant, while still waiting for a receipt notice, wants to start a new job, for I-9 purposes the employee can again provide the expired EAD with the STEM extension endorsement and the new employer’s information. As long as the employer is not aware of any deficiency in the Form I-765 filing, accepting these documents for I-9 purposes should not be an issue. If the employer does learn of such deficiency, it would be advisable to consult with an experienced attorney before taking any action.

Please reach out to your Jackson Lewis attorney with any questions about OPT, the new filing flexibility, or any Form I-9 questions or concerns.

When President Joe Biden revoked the immigrant visa ban, but not the nonimmigrant visa ban or 14-day travel restrictions, it seemed there might be problems ahead. New restrictions on National Interest Exceptions (NIEs) to the 14-day travel restrictions for the United Kingdom, Ireland, and Schengen Area have been issued, and many individuals currently in the United States in E, H, L, O, or P status should not travel abroad to a restricted country unless they are prepared to remain there for some time.

On March 2, 2021, the Department of State (DOS) issued new guidance severely limiting the prior guidance for NIEs from the 14-day travel restrictions for the United Kingdom, Ireland, and the Schengen Zone. Previous categorical exceptions for professional athletes and treaty investors or traders no longer apply. The exception that previously covered certain technical experts and specialists, as well as senior-level managers and executives (those applying for H and L visas), has been rescinded. The only exceptions remaining are for those seeking to enter for humanitarian purposes, the public health response, national security, or “vital support” for a critical infrastructure sector. However, previously granted NIEs remain valid and will not be revoked due to the new policy.

A week earlier, on February 24, 2021, DOS updated its guidance regarding NIEs to the nonimmigrant visa ban, not to be confused with the 14-day United Kingdom, Ireland, and Schengen Area travel restriction. That update limited NIEs by requiring specific evidence, particularly for H-1B, H-2B, J-1, and L-1 visa applicants. As an example, a technical specialist, senior level manager, or other worker requesting an H-1B visa whose travel is necessary to facilitate the immediate and continued economic recovery of the United States must prove at least two of the following five indicators:

  • The employer has continued need for the services as evidenced by a Labor Condition Application (LCA) approved during or after July 2020. If the job can be performed remotely, then there is no continued need.
  • The applicant will provide significant and unique contributions to an employer meeting a critical infrastructure need and must hold a senior level placement, have job duties that are both unique and vital to the management and success of the overall business, or have specialized qualifications.
  • The wage rate meaningfully exceeds the prevailing wage rate by at least 15 percent.
  • The applicant’s education, training, or experience demonstrates unusual expertise.
  • Denial of the visa will cause financial hardship to the extent that the employer will be unable to meet financial or contractual obligations, continue in business, or create an impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

Based on this guidance from DOS, it is possible that an individual may be eligible for an NIE to the nonimmigrant visa ban, but still be precluded from travel to the United States due to the tightened constraints on NIE eligibility for the United Kingdom, Ireland, and Schengen Area 14-day travel restriction.

Please reach out to your Jackson Lewis attorney for assistance in determining whether an employee or prospective employee is likely to meet the new eligibility requirements for an NIE.