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Alejandro Mayorkas has announced that the public charge rule, put in place by the Trump administration in 2019, is no longer in effect.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.

Flexibility in completing I-9 Employment Verification Forms has been continued until March 31, 2021, and it may be extended beyond that. Under that flexibility, employers have been allowed to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).

Nevertheless, as companies “return” to worksites and show their own flexibility in remote working scenarios, it is time to start planning and preparing for how to do the required in-person verifications and for the ultimate end of ICE’s flexibility. The rule is that once “normal operations resume,” in-person verification must be completed within three business days. ICE has not provided much guidance on what constitutes that resumption.

There are so many variations in the way companies have been working remotely. Here are a few ways the end of the flexibility policy could play out.

First, where ICE decides to end flexibility on a date certain and requires in-person verification within three days or by a certain date, employees who were verified virtually will have the specified number of business days to report for in-person verification. The hope is that ICE will provide sufficient notice before ending the policy or will give employers at least 60 days to re-verify their employees.

Second, where some employees, but not all, are returning to the worksite before the end of the policy, employers should ask employees who are returning and were verified virtually to report within three business days of their return for in-person verification.

Third, where the employer is continuing remote operations due to COVID-19 concerns even after the end of the flexibility policy, ICE might consider the circumstances on a case-by-case basis. How the agency will ultimately respond to an employer’s continuation of virtual verification is unknown.

Given the uncertainty, advance planning will be important, especially if a large number of employees have been verified virtually. Consider the following:

  • Make sure you have maintained 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. Remember that using authorized representatives to do the in-person review, as always, continues to be an option. Any person can be an authorized representative. Remember: the employer remains liable for any mistakes made by the representative and representatives should not be biased.
  • 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 appropriate 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 is appropriate.

Jackson Lewis attorneys are available to answer questions and help to develop strategies to deal with the uncertainties regarding the continuation of Form I-9 flexibility.

President Joe Biden has revoked the immigrant visa ban because he believes it did not advance the interests of the United States, but instead harmed United States industries, families, and diversity immigrant visa lottery winners.

The ban was put in place by former President Donald Trump in April 2020 on the stated ground that it was necessary to protect U.S. workers in the aftermath of the COVID-19 pandemic. It has prevented individuals who were abroad from seeking to enter the United States as permanent residents. Originally set to last for only 60 days, the ban was extended through March 31, 2021, by President Trump. The immigrant visa prohibition prevented some talented employment-based applicants from entering, but most of the people affected were diversity visa lottery winners, as well as family members of U.S. citizens and lawful permanent residents, who were prevented from joining their families in the United States.

This is now the third Trump travel ban that Biden has terminated. The first two were the bans that prevented individuals from 13 primarily Muslim or African countries from entering the United States. Still in effect is the nonimmigrant visa ban that has been thwarting U.S. businesses by preventing certain applicants for H, L, or J status from obtaining visas or coming to the United States absent an exemption or a national interest exception. This ban, like the immigrant visa ban, is still set to terminate on March 31, 2021, but it is not clear if that will happen.

The other travel ban that has been making it difficult for businesses to function is the 14-day ban that prohibits U.S. entry by individuals who have been in over 30 countries (China, Iran, the U.K., Ireland, the 26 Schengen countries, Brazil, and South Africa) in the 14days prior to their arrival in the United States. This ban, unlike the immigrant and nonimmigrant visa bans, is based on COVID-19-related health concerns.

The Department of State has issued specific instructions on how to proceed for 2020 Diversity Visa Applicants and immigrant visa applicants who were previously refused visas or entry due to the April 2020 proclamation. In addition, the Secretary of State has granted a national interest exception for 2020 Diversity Visa Applicants who hold valid visas but are subject to one of the 14-day bans.

Jackson Lewis attorneys are available to assist you in developing strategies to deal with the bans that are still in effect and to advise on the effects of the most recent revocations.

In a surprising and welcome development to U.S. employers, USCIS today announced that employers filing E-3 visa petitions on behalf of Australian nationals will have the option of requesting premium processing when requesting a change or extension of status to E-3.

The E-3 visa for Australian professionals became law in 2005. Currently a maximum of 10,500 are available each year, but, unlike the H-1B cap, the E-3 limit has never been reached. This makes it an attractive visa alternative for Australians, especially when H-1Bs are not available.

E-3 visas allow Australian nationals to enter the United States to perform work in a specialty occupation, as long as the beneficiary has a bachelor’s degree or its equivalent in the relevant field. The supporting documentation must include, among other things, a Labor Condition Application like those required for H-1Bs.

The E-3, like the TN visa for Canadians and Mexicans, is known as a “fast track” visa because an individual may apply for an E-3 directly at a Consulate abroad – without filing a Form I-129 with USCIS. But in these days of COVID-19, applying at a Consulate abroad may not be practical when the new hire is already in the United States. So, having the ability to premium process a case likely will come in handy even with the additional USCIS filing fees – including the $2,500 premium processing fee.

This premium processing announcement is the second step USCIS has taken to make E-3 visas more equivalent to other nonimmigrant visas. The first step was in 2016, when USCIS clarified that E-3 nonimmigrants (like other nonimmigrants) have up to 240 days of continued automatic employment authorization with the same employer beyond their current expiration date if the employer timely files an extension of stay request.

Last October, in a Continuing Resolution, Congress announced that new visa benefit types would become eligible for premium processing. The new benefit types included EB-1 petitions for multinational executives and managers, EB-2 petitions for those seeking national interest waivers, applications to change nonimmigrant status to F, J, or M, applications to change or extend status as the dependent of an E, H, L, O, P, or R visa holder, and applications for employment authorization. These are not yet in effect and will not go into effect until USCIS issues regulations setting out the specific fees and adjudication times. The E-3 visa was not included in that list, but perhaps the extension of premium processing to E-3 visas will lead to more announcements.

Jackson Lewis attorneys will provide updates and are available to assist with any questions about E-3 applications for Australians.

On March 1, 2021, USCIS will be returning to the 2008 version of the naturalization civics test. This change is a response to President Joe Biden’s Executive Order, “Restoring Faith in Our Legal Immigration System,” that directed a review of the naturalization process to eliminate barriers to the process. Individuals who file naturalization applications with receipt dates on or after March 1, 2021, will take the “old” 2008 version of the test.

The Trump administration retired the 2008 version of the test and introduced a new version that became effective on December 1, 2020. That test introduced new questions and restructured others.

Those who filed their applications on or after December 1, 2020 (when the Trump administration test was in effect), but before March 1, 2021 (when the 2008 version of test becomes effective again) with an interview scheduled before April 19, 2021, will have the choice of taking either the 2008 test or the 2020 test. If the interview is scheduled on or after April 19, 2021, they will take the 2008 test. Those who take the 2020 test will have to answer 12 out of 20 questions correctly to pass. Those who take the 2008 test will have to answer 6 out of 10 questions correctly to pass. Each test has its own set of study questions – 128 for the 2020 version and 100 for the 2008 version.

The relevant study materials for both tests are available on the USCIS Citizenship Center website.

Jackson Lewis attorneys are available to assist you with any questions regarding the naturalization process, including the required civics and English language tests.

The United States Citizenship Act was introduced on February 18, 2021. Sponsored in the House by Representative Linda Sanchez (D-Calif) and in the Senate by Senator Bob Menendez (D-N.J.), the bill calls for broad immigration reform, including creating paths to citizenship for undocumented immigrants, expanding the number of available visas, and creating more access for highly skilled workers.

Much of the focus has been on the proposed eight-year path to citizenship for “Dreamers,” TPS beneficiaries, and the 11 million undocumented individuals currently living in the United States. Other highlights include changes to asylum policies and increased aid to Central America to address root causes of migration. Major changes have also been proposed regarding on immigrant and nonimmigrant employment-related visas.

For immigrant visas, the bill tries to balance the economic benefits of increased immigration with concerns for U.S. workers. Key proposals include:

  • Increasing the number of employment-based green cards available each year from 140,000 to 170,00 and adding left-over visas from FY 1992 through FY 2020 into the mix;
  • Eliminating numerical limitations for those whose immigrant visa petitions have been approved and who have been waiting to adjust status for more than 10 years;
  • Eliminating per country caps altogether beginning in FY 2022;
  • Exempting U.S. doctoral STEM graduates from the numerical limitations;
  • Creating a pilot program for regional economic development that would allow for an additional 10,000 immigrants per year based on localized economic development strategies; and
  • Authorizing the Department of Homeland Security (DHS) and the Department of Labor (DOL) to temporarily reduce the admission of EB-2 and EB-3 immigrants during times of high unemployment in particular labor markets or geographic areas.

Similarly, key provisions regarding nonimmigrant, temporary work visas include:

  • Authorizing employment for all H-4 spouses and children;
  • Authorizing one-year extensions of work authorization for those in F-1, H-1B, L, and O status if their immigrant visa petition or labor certification authorization has been pending for more than one year;
  • Exempting F-1 students at institutions of higher education from dual intent restrictions; and
  • Authorizing DHS in conjunction with DOL to prioritize the distribution of H-1B visas based upon the offered wage – a wage hierarchy as has already been proposed by regulation.

Recognizing that several recent attempts at passing a comprehensive immigration bill have not made it out of Congress, initial discussions include a “multiple trains” strategy – prioritizing pieces of the bill to move through Congress – while continuing to push for the broader overhaul.

President Joe Biden has noted that he has “laid out [his] vision for what it will take to reform our immigration system and [he] look[s] forward to working with leaders in Congress to this done.”

As the negotiations in Congress and with the White House move forward, we will provide updates regarding the aspects of the bill that are likely to succeed.

USCIS announced that on May 14, 2021, it will dispose of 10 years of records dated on or before December 31, 2010, from its Historic Records Report. Employers that use E-Verify have until May 14, 2021, to download case information they wish to retain.

This is not a new procedure, USCIS has been disposing of records that are 10 years old in accordance with the National Archives and Records Administration (NARA) records retention and disposal schedule. USCIS is required to dispose of E-Verify records to minimize security and privacy risks associated with the retention of Personal Identifiable Information.

Employers that use E-Verify are required to record or print and file the E-Verify case verification number for each corresponding Form I-9 Employment Eligibility Verification and may retain the historic records report with corresponding I-9 forms.

If you have questions about whether to download and retain this information and how this comports with your company’s record retention policies, please reach out to your Jackson Lewis attorney.