Restrictive H-1B Rules Enjoined

Great news!  The two new regulations that drastically increased prevailing wage requirements for H-1B and PERM, and would have soon significantly restricted H-1B eligibility, have been struck down by a federal court in California. The Department of Labor (DOL) rule, which changed the manner in which DOL calculates prevailing wages, went into effect on October 8 and had already had significant impacts to our clients’ H-1B and PERM cases.  The Department of Homeland Security (DHS) rule would have gone into effect December 7 and would have made several changes to the H-1B program including revising the definition of “specialty occupation.”

Both rules were issued without first going through the normal rulemaking process purportedly due to the COVID-19 pandemic’s urgent economic impact on U.S. workers.  The court did not buy that argument and set aside the rules for failure to issue the rules in accordance with the normal “notice and comment” process.  This means that, going forward, companies can rely on previous prevailing wages that were in effect before October 8, and can rest assured knowing that H-1B regulations won’t become even stricter.  As always, we encourage you to contact your Chin & Curtis attorney to discuss your individual case and any questions you may have about the impact of this decision.

DHS Extends Form I-9 Requirement Flexibility

Some welcome pandemic relief arrived with the extension of the rule that makes it easier to complete Form I-9 remotely.

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. The temporary guidance will be in force until December 31, 2020, rather than the original expiration set for November 19, 2020.

This provision only applies to employers and workplaces that are operating remotely. The original news release gives more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. DHS said that employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

For more details, please see:

State Dept. Revises Guidance to Implement Court Order in NAM v. DHS

The Department of State (DOS) released revised DOS guidance that clarified an October 1, 2020 court order enjoining the government from enforcing a Trump administration ban on H, L, and J nonimmigrants under section 2 of Presidential Proclamation 10052.

Applicants are now considered covered by the NAM court’s order as long as the petitioner or sponsoring entity is a member of one of the named plaintiff associations at the time of adjudication.

The court further ordered that DOS “treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant.” The DOS guidance states that posts should extend the national interest exceptions under the proclamation to applicants covered by the injunction where regional COVID-19-related proclamations are in effect.

DOS said that an applicant is now considered covered by the NAM court order “if the applicant’s petitioner, sponsor, or host organization (for J-1 visas) is either one of the named plaintiffs or a member of one of the named plaintiff associations as of the time of interview.”

DOS said posts should continue to treat “petition-based work visas (including H’s and L’s) as Tier 2 (second only to cases involving humanitarian emergencies, applicants contributing to COVID-19 eradication, diplomatic visas which do not require in person appointments, etc.)” To comply with the order, “J-1 intern, trainee, teacher, camp counselor, au pair, or summer work travel program applicants should be considered Tier 2, as well.”

An appeal of the October 1, 2020, injunction is pending.

For more details, please see:

DHS Issues Proposed Rule to Expand Biometrics Collection

The Department of Homeland Security (DHS) proposes to “permit collection of biometrics from aliens departing from airports, land ports, seaports, or any other authorized point of departure.” In addition, to enable U.S. Customs and Border Protection (CBP) to verify identity by using facial recognition technology, DHS proposes “to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure.”

U.S. citizens may voluntarily opt out of participating in CBP’s biometric verification program.

Comments are due by December 21, 2020.

For more details, please see:

USCIS Publishes Guidance on E-Verify Tentative Nonconfirmations

U.S. Citizenship and Immigration Services (USCIS) recently published a question and answer on photo mismatches of Department of Homeland Security (DHS) Tentative Nonconfirmations (TNCs).

USCIS said that the photo E-Verify transmitted should be identical to the photo that appears on an employee’s DHS or Department of State-issued document. If the employer determines that the photos do not match, it results in a photo mismatch TNC. If the employee chooses to take action on this TNC, the employer must follow the instructions in the Further Action Notice to scan and upload an image of the employee’s document into E-Verify, USCIS said.

For more details, please see:

Visa Bulletin for December Includes Info on Diversity Visas, Scheduled Expiration of Two Employment Visa Categories

  • The Department of State’s Visa Bulletin for December 2020 includes information on the diversity visa immigrant category rank cut-offs that will apply in December and January. It also includes information on the scheduled expiration of two employment visa categories on December 11, 2020: the employment fourth preference Certain Religious Workers (SR) category and the employment fifth preference categories (I5 and R5).For SR visas, if there is no legislative action extending this category, it will become “Unavailable” effective midnight December 10, 2020. For I5 and R5 visas, if there is legislative action extending these categories, the December dates would be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective midnight, December 11, 2020.Details:

New Blog Posts

The Chin & Curtis team authored several new blog posts over the past month. We invite you to read our insights in posts including What’s Next? Post-Election Regulatory Shifts, and The Human Element of Managing Work Visas: Easing Employee Anxiety.