The United States-Canada border is not only the world’s longest international border, but it includes some of the busiest commercial crossings in North America. New travel restrictions have been implemented as the COVID-19 pandemic continues.

Non-Essential Travel Ban

The land border has been closed to “non-essential” travel since March 2020 due to COVID-19. Restrictions include:

  • Individuals are not admitted for tourism, sightseeing, recreation, gambling, attending cultural events, or other non-essential purposes. They are admitted for “essential” purposes, which include travel for work, medical reasons, to attend educational institutions, and diplomatic or military related travel.
  • Citizens or permanent residents of the country they are entering are excepted from the ban.
  • Testing Requirements
    • Anyone entering Canada at a land port of entry must show a negative COVID-19 test that was taken within 72 hours of seeking entry.
    • No parallel testing requirement for entering U.S. land ports of entry.

The “non-essential” travel ban does not apply to individuals entering the United States or Canada by air. However, testing requirements apply:

Quarantine Requirements

While the U.S. government has the authority to enforce quarantines upon entry, the current CDC guidelines have no specific penalties for failure to comply. Canada regulations, on the other hand, include penalties.

Jackson Lewis attorneys are available to assist with any questions regarding travel between Canada and the United States, as well as any other international travel.

On January 19, 2021, just before the end of his term, President Donald Trump issued a memorandum granting Deferred Enforced Departure (DED) for certain Venezuelans for a period of eighteen months. DED is a humanitarian grant of protection for individuals who cannot return to their home country. DED beneficiaries are not subject to removal during the designated time period and, in this case, will be eligible to request employment authorization. DED is discretionary and granted on the basis of the President’s constitutional power to conduct foreign relations.

The memo granting Venezuelan DED references the violations of sovereign freedoms in Venezuela and the “catastrophic economic crisis and shortages of basic goods and medicine” that has forced thousands of Venezuelans to flee their home country. It is estimated that there are approximately 200,000 Venezuelans (many of whom have U.S. citizen children and half of whom are living in Florida) who will benefit from this grant of DED. The benefit will only apply to otherwise eligible individuals who were physically present in the United States on January 20, 2021 (the day after the memorandum was issued). While DED is conferred automatically, USCIS has not yet issued instructions on how to apply for employment authorization corresponding with this benefit.

In the meantime, a bipartisan group of representatives and senators have introduced a bill to provide Temporary Protected Status (TPS) for eligible Venezuelans. TPS is similar to DED but is granted either by the Department of Homeland Security (DHS) or the Congress through legislation. A grant through legislation would provide a more secure benefit for the eligible Venezuelans. In addition, at this time, the Biden-Harris Administration has introduced the U.S. Citizenship Act of 2021 which, if passed, could provide a path to citizenship for TPS beneficiaries.

If you have any questions about Venezuelan DED or TPS, please reach out to your Jackson Lewis attorney. We will provide updates as they become available.

With the H-1B cap season about to begin, there is good news for computer programmers and those who employ them. USCIS announced the immediate rescission of a 2017 guidance memo that had raised questions about whether computer programmers qualified for H-1B specialty occupation visas. The 2017 guidance, issued in the wake of the Buy American, Hire American Executive Order, led to a slew of Requests for Evidence (RFEs) and denials.

USCIS’s rescission of the 2017 guidance follows a December 2020 decision of the Ninth Circuit of Appeals in Innova Solutions v. Baran. In Innova Solutions, the Ninth Circuit reversed the District Court decision and concluded that USCIS’s denial of an H-1B petition for a computer programmer was arbitrary and capricious. The court stated that there was “no daylight” between the OOH’s description of the degree requirement for a computer programmer position (“most . . . have a bachelor’s degree in computer science or a related subject”) and the statutory requirement (“a baccalaureate or higher degree . . . is normally the minimum requirement for entry”).

Because the 2017 guidance resulted from then-President Donald Trump’s Buy American, Hire American Executive Order, it is also possible that its rescission is related to President Joe Biden’s subsequent rescission of that Order. Since numerous limitations on legal immigration resulted from Buy American, Hire American, it is conceivable that the rescission of the 2017 guidance is a harbinger of other changes to come. Indeed, Biden has set up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment-based immigration.

If you have any questions about how computer programmers in your organization may be affected by the recent guidance, please reach out to the Jackson Lewis attorney with whom you regularly work.

USCIS has announced that the Cap H-1B Electronic Registration will open on March 9, 2021 at noon EST and will close on March 25, 2021 at noon EST.

The process will mirror last year’s process.

USCIS also announced its timetable – 1) it intends to notify registrants and representatives regarding selection by March 31, 2021, and 2) the earliest date that FY 2022 H-1B cap-subject petitions may be filed will be, as usual, April 1, 2021 which is a Thursday this year.

Each registration will show one of the following statuses after being submitted:

  • Submitted: The registration has been submitted and remains eligible for selection;
  • Selected: The petition has been selected to be filed as a Cap H-1B petition;
  • Not Selected: The petition is not eligible to be filed based upon the submitted registration;
  • Denied: Multiple registrations were submitted on behalf of the same beneficiary and therefore all duplicate registrations for this beneficiary are invalidated for this fiscal year; or
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

Jackson Lewis attorneys are available to assist you with the electronic registration process and have already started preparing for March 9th.

H-1B lottery deadlines are fast approaching, and two questions have been plaguing employers:

  1. When does the registration window open/close?
  2. Will the registration process be the same as last year?

With only weeks to go, USCIS has announced that this year’s electronic registration and lottery process will be the same as it was last year. This confirms that changes proposed to make the lottery based on wage levels for H-1B positions will not move forward for this year’s H-1B selection process.

The Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions rule (Modification Rule) that would have prioritized cases based on wage level is under further review, and its effective date has been postponed until at least December 31, 2021. USCIS announced that it needs more time to test, develop, and implement the necessary modifications.

Under the Modification Rule, instead of a random selection, USCIS would select and rank cases based on wage level – starting with Level IV and working down. Because no quotas were set on wage levels, the new rule would increase the selection rate of Level III and Level IV cases. Indeed, most of those case would probably be selected. This would give employers more certainty when petitioning for higher paid workers. On the other hand, employers hiring entry-level workers will have more difficulties. Concerns about this and the effect on the economy were raised by companies and organizations during the initial comment period for the Modification Rule.

It is also not clear whether the Modification Rule, as currently written, will be implemented for next year’s H-1B lottery. USCIS noted, “During the delay, while [it] works through the issues associated with implementation, DHS leadership will also evaluate the [Modification Rule] and its associated policies, as is typical of agencies at the beginning of a new Administration.”

Stay tuned for updates when USCIS confirms the actual registration period (expected to be the first three weeks of March). Jackson Lewis attorneys will provide updates as they become available. In the meantime, please reach out to your Jackson Lewis attorney with any questions about next steps, including how to strategize and determine which employees should be entered into the lottery.

 

 

On the same day his nominee for Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, was confirmed, President Joe Biden signed several Executive Orders regarding immigration, including one that directs complete review of policies.

The first, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” is of particular interest to the business community.  It sets up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment based. This will include a review of the public charge rule, fee increases, and streamlining of the naturalization process, among others. Recognizing the difficulties created over the past four years by the many unpublicized rule, policy, and guidance changes, this Executive Order directs a comprehensive agency review of all immigration-related regulations, orders, guidance documents, policies, and other similar agency actions that impede access to fair and efficient adjudications. It likely will include a review of the policies that led to a 21% denial rate and a 47% Request for Evidence (RFE) rate for H-1B petitions in FY 2020.

The second looks to roll back damaging asylum policies and develop an effective strategy to manage asylum cases across the region.

The third creates a task force to reunify families that were separated at the border.

These latest Executive Orders build on changes already made since January 20, 2021, including:

These Executive Orders and policy announcements are consistent with the administration’s stated goal of creating an immigration system that is more welcoming to immigrants and to the employers who rely on them. President Biden recognizes that “new Americans fuel our economy, as innovators and job creators, working in every American industry and contributing to our arts, culture, and government.”

Jackson Lewis attorneys will provide updates as they become available. Our attorneys are ready to assist with questions regarding changes and strategies.

 

 

 

 

 

On January 29, 2021, the Department of Homeland Security (DHS) announced the extension of Temporary Protected Status (TPS) for Syrian nationals for a period of 18 months until September 2022. This will affect approximately 8,500 Syrians living in the United States – 6,700 of whom are already in TPS and will be able to renew, as well as an additional 1,800 otherwise eligible individuals who entered the United States after August 1, 2016 and will be eligible to make an initial filing.

Acting DHS Secretary David Pekoske decided to extend TPS for Syria because “[t]he Syrian civil war continues to demonstrate deliberate targeting of civilians, the use of chemical weapons and irregular warfare tactics, and the use of child soldiers. The war has also caused sustained need for humanitarian assistance, an increase in refugees and displaced people, food insecurity, limited access to water and medical care, and large-scale destruction of Syrian’s infrastructure.” These are all circumstances that prevent Syrian nationals from returning to their home country safely.

Instructions on how to register, re-register and obtain employment authorization will be posted in the Federal Register and on the USCIS TPS website. Eligible individuals should not submit any forms or payments until those instructions are posted.

On or before July 31, 2022, the DHS Secretary will decide whether to extend Syrian TPS beyond September 2022.

Once again, ICE has announced a further extension of flexibility in its rules related to I-9 compliance. The extension will continue through March 31, 2021.

This means that:

  • Employers may continue to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).
  • The flexibility applies only to employers with workplaces that are operating remotely. ICE reiterates that if employees are physically present at the workplace, no exceptions will be implemented.
  • Any employees onboarded virtually must report for in-person verification once the employer’s normal operations resume (which may be before March 31, 2021) or once the employee is physically present at the work location, whichever is earlier.
  • Employers not eligible for the flexibility, if necessary, may designate authorized representatives to act on their behalf to conduct in-person review of documents.

Jackson Lewis attorneys are available to assist you in establishing I-9 policies and practices to fit your company’s circumstances.

According to a draft scheduled for publication in the Federal Register on February 1, 2021, the Biden administration plans to delay the effective date of the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule (Prevailing Wage Rule) for 60 days while the Department of Labor (DOL) conducts a new comment period and reviews “any questions of fact, law or policy the rule may raise.”

In the final days of the Trump administration, DOL published a rule designed to raise minimum wages for high-skilled workers. With a March 15, 2021, effective date, that rule would start to affect H-1B, H-1B1, and E-3 work visa cases, as well as PERM filings in July 2021. Among other things, Level I and Level II wages moved up a step, making it more difficult to hire entry-level employees.

Jackson Lewis attorneys will continue to follow this rule’s journey through the regulatory process and provide updates as they become available.

On January 25, 2021, the Biden administration withdrew from review the Trump administration’s proposed rule that would have rescinded the H-4 EAD program.

For close to five years, spouses of H-1B workers holding H-4 EADs have been living with uncertainty that their work authorization would be eliminated at any time. In addition to the Trump administration’s proposed rule, there has been ongoing litigation challenging H-4 work authorization.

Approximately 100,000 H-4 EAD holders (mostly women and mostly from India) have been concerned about their ability to continue to work. They and their families have often been hindered from moving forward with their lives in the United States due to the uncertainty. Vice President Kamala Harris, as a Senator, opposed the Trump administration’s attempt to eliminate the rule. In 2019, she wrote on Twitter:

“This is outrageous and will force immigrant women who are doctors, nurses, scientists and academic, among others, to abandon their professional careers. I called on DHS last year to withdraw this proposal and will continue to fight this.”

Employers will no longer have to worry about business disruptions and creating “back-up” plans for valuable employees on EADs. Allowing spouses to work also enables U.S. companies to compete more effectively for high-skilled workers with other countries that allow spouses to work.

Reportedly, President Joe Biden’s immigration reform proposal, among many other things, would authorize employment for spouses and children of all H-1B workers. The current EAD rule authorizes only spouses of H-1B workers in the Green Card process to work.

Jackson Lewis attorneys will continue to follow any developments.