The “Aligning Federal Contracting and Hiring Practices With the Interests of American Workers” Executive Order directs federal departments and agencies to conduct audits of federal contracts awarded in Fiscal Years 2018 and 2019 to determine if U.S. job opportunities or the economy have been adversely affected by the use of temporary foreign workers in the U.S. or abroad.  See our full update here.

 

The Department of State (DOS) has provided more details to the Consulates on the national interest exemption under President Donald Trump’s June 22, 2020, executive order.

The “Presidential Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” bars holders of certain visas from entering the U.S. not due to concerns about contagion, but ostensibly as a way to preserve jobs for Americans. The order restricts the entry of certain H-1B, H-2B, L-1, and J-1 nonimmigrants, along with their dependents until the end of 2020.

Unemployment has increased dramatically in the United States, from a low of 3.2% in February 2020, to a high of over 14% two months later. Unemployment has continued to decline in the following months as companies bring back employees to get their businesses moving again. Many businesses have been hampered in their efforts to return to full operations by the inability of critical employees, many with very specialized skills and training who are not citizens of the U.S., to enter the country for work.

Several exceptions were listed in the proclamation, but interpretations as to how to qualify varied. DOS has provided the Consulates details on the national interest exceptions for H and L visas. The details are focused on healthcare and medical research needs (both COVID-19 and non-COVID-19), including whether the applicant was facilitating continued economic recovery and doing essential work in critical infrastructure. Longevity with the employer and whether denial of the visa would cause economic hardship for the company also will be considered.

DOS also has provided a non-exclusive list of examples, leaving open more possibilities. Following are some examples of exceptions for H-1B employees (comparable examples apply to H-2B and L-1 visas):

  • Healthcare professionals working on COVID-19 or in other important medical areas, such as cancer or communicable diseases.
  • Healthcare professionals working in areas that have been adversely affected by COVID-19 – perhaps providing medical services that have had to be curtailed due to COVID-19, such as providing rehabilitation services or other services deemed “non-essential” due to COVID-19.
  • Applicants seeking to resume ongoing employment in the same position, in the same visa classification, with the same employer because having to replace such an individual might cause the company financial hardship.
  • Travel by technical specialists, senior level managers, and others whose travel is necessary to the economic recovery of the U.S. by showing two of five factors:
    • The continuing need for the employee, including a showing that the essential functions cannot be accomplished remotely
    • The employee will provide unique contributions in critical infrastructure sectors: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems
    • The employees’ wage exceeds the prevailing wage by at least 15%
    • The employee has unusual expertise demonstrated by their background
    • Denial of the visa will cause financial hardship to the company, as shown by:
      • Employer will not be able to meet financial or contractual obligations
      • Employer will not be able to continue its business
      • Employer will not be able to return to pre-COVID-19 level of operation

As to J-1 visas, there are exceptions for au pairs for children with special needs or whose parents do COVID-19-related work.

The initial hurdle to convincing a Consulate to grant a waiver is getting an appointment, which may itself require proving national interest.

Jackson Lewis attorneys are available to assist employers navigate this process. We are helping U.S. businesses get back to full operation by evaluating and developing arguments for employees in H, L, and J status who may qualify for an exception to the employment-based visa restrictions, as well as the Schengen and other COVID-19-related travel restrictions.

 

With a breakdown in talks on the latest COVID-19 stimulus package and with most senators and representatives out of town (though the House has been recalled from vacation to address the U.S. Postal Service crisis), USCIS has not received the $1.2 billion that it wants and says it needs to avoid furloughing two-thirds of its workforce. Unless talks pick up again, USCIS plans to furlough 13,400 of its 20,000 workers as of August 30, 2020.

The agency, which is already plagued by long processing delays and ever-increasing backlogs, would be severely hampered, if not effectively shut down, by the furlough.

In the background, Congressional staffers have indicated that, at this point, there is “no Plan B,” but that a break may come in terms of appropriations when Congress gathers again in September.

In the meantime, the hope is that USCIS will again push the furlough down the road. This should be possible since it was discovered that, in July, USCIS actually had a surplus of approximately $121 million and that it needs the bailout for FY 2021, which does not begin until October 1, 2020.

Not only would the furlough devastate USCIS and possibly irreparably harm foreign nationals and the businesses that rely on its services, but it would also harm local economies and create even more unemployment during the COVID-19 national crisis.

Jackson Lewis attorneys will continue to follow the progress of any negotiations and provide updates as they become available.

There have been rumors floating that USCIS might be selecting more H-1B cap registrations for the FY 2021 cap.  Those rumors appear to be true.  As of August 14, 2020, registrants have received emails with notifications of further selections.  A USCIS spokesperson said, “that full visa petitions for those selected in the second round this month will be due between August 17, 2020 and November 16, 2020.”  It is possible that the COVID-19 crisis, which has occasioned high unemployment and business closures, is at least in part responsible for a shortage of H-1B petitions having been filed to date.

We do not have any additional information at this time about how many more will be selected or how long this new selection process may or is expected to continue.  As soon as more details become available, we will provide updates.  In the meantime, if you were a registrant, check your email for any notifications of additional selections.

On August 12, 2020, the U.S. Court of Appeals for the Second Circuit limited the nationwide injunction on the Department of Homeland Security’s Public Charge Rule to three states: Connecticut, New York, and Vermont.

Since August 14, 2019, exactly one year ago today, when DHS published the final version of the new Public Charge Rule in the Federal Register, there have been multiple court challenges and the Rule has been widely criticized. With the new Rule, the Trump Administration is imposing additional requirements and background screening for foreign nationals who hope to obtain green cards or secure temporary non-immigrant status.

Due to the litigation, it is still not clear how the agencies will enforce this rule. The following recaps the twists and turns of the litigation:

  • The Rule was supposed to go into effect on October 15, 2019, but just before that could happen, several courts issued injunctions.
  • By February 21, 2020, the U.S. Supreme Court had lifted the last remaining injunction and the Rule went into effect on February 24, 2020.
  • The COVID-19 pandemic crisis began and, on July 29, 2020, the Rule was once again enjoined nationwide by a federal district court in New York because it impeded efforts to combat the disease – immigrants, many of whom are essential workers, were afraid to seek testing and this was detrimental to efforts to combat the disease.
  • USCIS issued guidance that, while the injunction was in effect, petitions and applications would be accepted without public charge information.
  • On August 12, 2020, in response to a request from the Administration, the Second Circuit limited the nationwide injunction to Connecticut, New York, and Vermont.

A USCIS spokesperson reported that the agency is reviewing the Court’s Order and “will determine the administrative viability of reimplementing the Inadmissibility on Public Charge Grounds Final Rule where applicable.”

If you have questions about the applicability to the Public Charge Rule, especially if you live or work outside of Connecticut, New York, or Vermont, Jackson Lewis attorneys are available to assist you.

Assuming there is no further stalling or litigation by the government, Employment Authorization Documents (EADs) may finally be on their way to approximately 75,000 foreign nationals who have been waiting for them, in some cases for months, after having approved application notices in hand.

In Subramanya v. USCIS, federal District Judge Algenon L. Marbley issued a temporary order giving USCIS seven days to produce the backlogged cards. Judge Marbley agreed to continue the hearing on the preliminary injunction until August 24, 2020 to allow the parties time to negotiate a consent degree to resolve the claims. Form I-9 rules do not allow many categories of “alien authorized to work” employees to use the petition approval notices to prove authorization to work—the actual EAD is often needed under the rules.

Since deciding to cancel the printing contract with an outside vendor and bring the production of Green Cards and EADs in-house, USCIS has been unable or unwilling to address the demand or eliminate the backlog. The agency’s plan to hire more workers for this task appears to have been put on hold because of financial mismanagement, or political maneuvering, despite being a fee-based service that has had no financial issues until this year.

Plaintiffs in Subramanya argued USCIS abused its power in an egregious and outrageous manner either with the intention of harming the plaintiffs or out of deliberate indifference to the harms caused. Plaintiffs waiting for EADs have lost wages, lost healthcare, lost jobs, lost the ability to support their families and have even been forced into homeless shelters.  Employers have been forced to terminate valuable employees, losing their expertise and talents. Judge Marbley wrote that although there is no statutory time frame for producing EADs, that “does not mean the agency retains unfettered discretion to issue EADs at any time they wish.” 

Since the failure to produce the EADs is a self-inflicted wound, USCIS needs to take responsibility and solve the problem. The solution may come in the form of a consent decree.  If the agency cannot produce the cards, perhaps it should consider a temporary adjustment to Form I-9 List A documents and allow foreign nationals to work on the basis of their EAD approvals alone.  This would help employees and employers who are already dealing with the COVID-19 crisis. Although those waiting for Green Cards are not part of this litigation, they have been similarly hindered by the lack of card production and also need some form of relief.

It is interesting to note that the named plaintiff in the case has received her EAD but Judge Marbley dismissed the agency’s argument that this made the case moot. Among other things, he noted that the agency cannot just pick off one plaintiff and expect that to mean that the proposed class cannot move forward.

Jackson Lewis will provide updates as they become available.

New Yorkers can once again register for Trusted Traveler Programs.

However, registrants should note that, due to COVID-19, Trusted Traveler Enrollment Centers are closed until at least September 8, 2020.

In early February 2020, the Department of Homeland Security (DHS) prohibited New Yorkers from registering or re-registering for Trusted Traveler Programs, including Global Entry, SENTI, NEXUS, and FAST (Free and Secure Trade). New Yorkers were singled out for this treatment because New York’s Driver’s License Access and Privacy Act, also known as the “Green Light Law,” gave undocumented residents the right to apply for driver’s licenses and prevented the Department of Motor Vehicles (DMV) from releasing their database information to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) absent a court order. At that time, the New York Attorney General sued DHS over New Yorkers’ exclusion from the Trusted Traveler Programs.

In court, the government argued that New York’s Green Light Law prevented CBP from accessing records they needed to vet applicants for Trusted Traveler Programs. In April 2020, New York amended the Green Light Law to allow the DMV to share records “as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports.” Notably, the case revealed that other states had similar laws to New York’s Green Light Law, that DHS was able to vet program applicants in those states, and that none of those states were “punished” with exclusion from the programs. As a result, the government asked to withdraw their motions for summary judgment and to dismiss, and DHS lifted the suspension on New Yorkers.

New York Governor Andrew Cuomo stated he was “glad that this issue has finally been resolved for all New Yorkers.” But, in a press release, Acting Secretary of the DHS Chad Wolf said he appreciated the information sharing regarding the Trusted Traveler Programs, but chastised New York for continuing to block federal access to DMV records, which he believes “creates a significant threat to both public safety and officer safety.”

Please contact a Jackson Lewis if you have any questions.

New USCIS filing fees will go into effect on October 2, 2020, under a new final rule published by the Department of Homeland Security (DHS) in the Federal Register on August 3, 2020. This rule raises fees by a weighted average of 20% and changes the current fee structure to impose specific fees per visa category.

USCIS, a fee-based agency, has stated the increase in fees was required to avoid a DHS projected deficit of $1 billion per year. Some fees will decrease, but others will increase dramatically – such as a more than 80% increase for citizenship applications. Other larger percentage increases include popular business-related petitions:

  • 51% increase for TN and E petitions to $695
  • 75% increase for L petitions to $805
  • 53% increase for O petitions to $705
  • 34% increase for I-765 Employment Authorization Documents to $550 (excluding DACA)

Employers whose workforce is comprised of at least 50% H-1B or L-1 workers will see even bigger increases. Already paying an additional $4,000 for a new H-1B visa and an additional $4,500 for a new L-1 visa, those companies will be required to pay the additional fees for renewals as well. It is reported that this alone will bring in $200 million per year in fees to USCIS.

Employers filing H-2A and H-2B petitions for temporary, seasonal agricultural and non-agricultural workers also will see an increase, from $460 to $850 (85%) and $715 (55%), respectively. This comes despite the Administration’s recognition of the essential nature of workers involved in the food supply chain during the COVID-19 pandemic national emergency.

The USCIS Premium Processing fee, which brought in $2.39 billion in fees to USCIS between 2014 and 2019, will not increase, but the processing time has changed from 15 calendar days to 15 business days, up from two weeks to three weeks.

Comments on the new rule include a suggestion that USCIS increase its own efficiency instead of “charging more and providing less service.” Others noted the Administration’s own policy failings created the need for increased fees, citing the following as areas of concern:

  • Frivolous Requests for Evidence
  • “Extreme vetting”
  • Long suspensions of premium processing
  • Unnecessary in-person interviews
  • Increased denaturalization efforts
  • Litigation of improperly denied applications

In addition, commentators complained of the negative impact the increased fees would have on potential immigrants, the businesses that need to employ them, and the economy. To these and other comments submitted, DHS responded that it understands immigrants make significant contributions to the United States economy, but this final rule is not intended to impede or limit naturalization or legal immigration. Other commentators suggest the Administration’s policies have already impeded immigration and fee increases are not likely to help alleviate that.

USCIS also plans to publish updated forms before the new fees go into effect, including a new Form I-129 and a new Form I-765.

If you have any questions about the new fees or the new forms, please reach out to your Jackson Lewis attorney.

 

 

Employers need to ready themselves for investigations from the Department of Labor (DOL) into the use of H-1B visas.

Without Congressional oversight or legislative changes, the Trump Administration has changed the policies for H-1Bs, resulting in the highest denial rate in history of this legal immigration program. During the ongoing COVID-19 pandemic national emergency, the Administration has issued a number of executive changes further restricting immigration, including a Presidential Proclamation restricting the entry of foreign nationals in H-1B status (among others) until at least the end of 2020.

Most recently, in conjunction with that Presidential Proclamation, USCIS and DOL have entered into an agreement to further share data so that DOL can conduct “more robust examinations” of employers’ H-1B usage. According to a DOL press release, “No previous Secretary of Labor has ever exercised this authority.”

In the past, USCIS has conducted unannounced worksite visits to ensure H-1B compliance. With DOL stepping into this new role, employers likely will see additional investigations and penalties for violations, including awards of back pay for wage errors. The added risks for businesses come as many of them continue to argue that making it harder to hire H-1B workers only harms the economy and does nothing to promote economic recovery.

Jackson Lewis attorneys are available to help you prepare for these new enforcement efforts by advising on auditing your H-1B petition processes and your H-1B public access files.

On July 29, 2020, U.S. District Court Judge George B. Daniels of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.

The Rule makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was meant to go into effect on October 15, 2019. Before that could happen, in an earlier decision, Judge Daniels enjoined it. Ultimately, the U.S. Supreme Court lifted the injunction, but left open the possibility of further filings in the lower courts.

New York, Connecticut, and Vermont took up that challenge and sought a new injunction based on “new harms” that had become apparent due to the COVID-19 pandemic. Despite the Supreme Court ruling, Judge Daniels agreed he could review the case again. He wrote in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts . . . to stem the disease.” He also noted that many immigrants who were affected by the Rule continued to work during COVID-19 to provide healthcare, food, and sanitization across the country and were essential to COVID-19 recovery.

Although the Administration had issued an alert earlier this year indicating that immigrants would not be penalized under the Public Charge Rule for seeking COVID-19 treatment, the Judge agreed that the alert did not go far enough and simply added to the “confusion and chaos” that was leading immigrants to forego care. He stated, “What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario, we are experiencing its dramatic effects in very real time.”

In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad. He stated that the plaintiffs were likely to succeed on their claims that the Rule as applied by the DOS violated the Administrative Procedures Act, because no reasonable justification for the Rule had been offered and because proper notice and comment procedures were not followed. The Judge also found the Rule was likely contrary to the Immigration and Nationality Act (INA).

The Administration probably will appeal these decisions. If you have questions regarding the applicability of the new injunctions, Jackson Lewis attorneys are ready to assist.