There continues to be an abundance of fast-moving developments around immigration news, updates, and executive orders that have been signed. Keep up with immigration-related news in this second February edition of the CCIU Newsletter.
U.S. To Require Negative COVID-19 Tests from International Arrivals
Effective January 26, 2021, all airline or other aircraft passengers arriving in the United States from any foreign country, with a few exceptions, must present: (1) a negative pre-departure test result for SARS-CoV-2, the virus that causes COVID-19 (Qualifying Test); or (2) written or electronic documentation of recovery from COVID-19 after previous infection in the form of a positive viral test result and a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel (Documentation of Recovery). For more information please see: https://www.cdc.gov/quarantine/pdf/global-airline-testing-order_2021-01-2_R3-signed-encrypted-p.pdf
President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info
On January 25, 2021, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa. U.S. citizens and lawful permanent residents are not subject to the proclamations. Exceptions also include foreign diplomats traveling to the United States on A or G visas; air and sea crew traveling to the United States on C, D, or C1/D visas; and others. For the full list of exceptions, refer to the proclamations. The Department of State also released a listing with descriptions of previous COVID-19-related Presidential Proclamations that remain in force. For more information please see: https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-coronavirus.html
DOS Announces Reconsideration of Visa Denials Based on Travel Bans
On January 22, 2021, the Department of State (DOS) announced that it will undertake a review “to ensure that individuals whose immigrant visa applications were denied on the basis of the suspension and restriction on entry imposed by P.P. [Presidential Proclamations] 9645 or 9983 may have their applications reconsidered.” In addition to considering whether to reopen such applications, the agency will consider whether to charge an additional fee for processing them and will develop a plan to expedite their consideration. The review is taking place in response to President Biden’s proclamation signed on January 20, 2021, ending travel restrictions under earlier Trump administration proclamations that suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen. The announcement warns that processing may be affected by COVID-19 pandemic-related restrictions at U.S. embassies and consulates on a post-by-post basis. For more information please see: https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html
DHS Extends Canada-U.S.-Mexico Border Restrictions
The Department of Homeland Security (DHS) extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021. The restrictions suspend entry via land border, ferry crossing, passenger rail, or coastal ports of entry from Canada and/or Mexico for pleasure boat travel of immigrants and nonimmigrants, including any travel that is not deemed essential. The restrictions do not apply to air, freight rail, or sea travel.
The determination of essential travel is at the discretion of the port of entry and exceptions to the restrictions include U.S. citizens and lawful permanent residents returning to the United States, individuals traveling for medical purposes and to attend educational institutions, individuals traveling to work in the United States, and other reasons. For more information please see: https://help.cbp.gov/s/article/Article-1694?language=en_US
USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions
On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.
USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said. For more information please see: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf
USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of a final rule that changed the selection process for cap-subject H-1B petitions. The rule would essentially eliminate the lottery process to give priority to higher wage offerings. The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B filing season this March.
For the upcoming H-1B cap lottery, USCIS will use the current regulations and selection process (random selection) to select registrations submitted during the filing window of March 9 to March 25, 2021. The H-1B lottery process saw significant changes last year, with the implementation of a pre-registration process. For more information please see: https://www.uscis.gov/news/alerts/dhs-delays-effective-date-of-h-1b-selection-final-rule
DOL Proposes to Delay Effective Date of H-1B/PERM Wage Rule Until May
The Department of Labor’s Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.” Comments may be submitted until February 16, 2021. It is expected that the rule will not go forward. For more information please see: https://bit.ly/3aKAkSB
Alejandro Mayorkas Confirmed to Lead Department of Homeland Security
The U.S. Senate confirmed Alejandro Mayorkas as Secretary of Homeland Security on February 2, 2021, making Mr. Mayorkas the first immigrant and first Latino to serve in that role. Mr. Mayorkas comes from a 30-year career as a law enforcement official and a nationally recognized lawyer in the private sector. He served as Deputy Secretary of the Department of Homeland Security (DHS) from 2013 to 2016, and as Director of U.S. Citizenship and Immigration Services from 2009 to 2013. During his tenure at DHS, he led the development and implementation of Deferred Action for Childhood Arrivals, negotiated cybersecurity and homeland security agreements with foreign governments, led the agency’s response to Ebola and Zika, helped build and administer the Blue Campaign to combat human trafficking, and developed an emergency relief program for orphaned youth following the January 2010 earthquake in Haiti. He also created the Fraud Detection and National Security Directorate. We are pleased to see Mr. Mayorkas lead DHS. For more information please see: https://www.dhs.gov/person/alejandro-mayorkas
Biden Signs Immigration-Related Executive Orders
President Biden recently signed several immigration-related executive orders to:
- Develop a strategy to address irregular migration across the southern border and create a humane asylum system. The Biden administration said it will address the underlying causes of migration; collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up asylum seekers’ and migrants’ protection and opportunities closer to home; and ensure that Central American refugees and asylum seekers have access to legal avenues to the United States. The order also directs the Secretary of Homeland Security to review the Migrant Protection Protocols program, and directs a series of actions to restore the U.S. asylum system, “including by rescinding and directing agency review of a host of Trump Administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers.”
- Restore the U.S. refugee admissions program. This order launches administrative reform efforts with a goal of increasing refugee admissions to 125,000 in the first full fiscal year of the Biden administration, and proposing a raise in refugee admissions for this fiscal year after consulting with Congress. Among other things, the order will expand refugee adjudication capacity and review the current Special Immigrant Visa program for Iraqis and Syrians.
- Elevate the role of the White House in coordinating the federal government’s strategy to promote immigrant integration and inclusion. This order includes re-establishing a Task Force on New Americans, and “ensuring that our legal immigration system operates fairly and efficiently.” The order requires agencies to review “recent regulations, policies, and guidance that have set up barriers to our legal immigration system” and “rescinds President Trump’s memorandum requiring family sponsors to repay the government if relatives receive public benefits, instructs the agencies to review the public charge rule and related policies, and begins a review to streamline the naturalization process.”
- Create a task force to reunify families. This task force will work across the U.S. government, with “key stakeholders and representatives of impacted families,” and with “partners across the hemisphere to find parents and children separated by the Trump Administration.” The task force will make recommendations on next steps for reunification, and “to prevent such tragedies from occurring again,” and will report regularly to the President.
OFLC To Reissue Certain Prevailing Wage Determinations
On January 20, 2021, a U.S. district court issued a modified order governing the manner and schedule in which the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) will reissue certain prevailing wage determinations (PWDs) that were issued from October 8, 2020, through December 4, 2020, under the wage methodology for a related DOL interim rule issued in October, and at the request of employers under the H-1B, H-1B1, and E-3 temporary programs and PERM labor certification program.
OFLC said DOL is taking necessary steps to comply with the modified order issued by the district court. Accordingly, OFLC will reissue certain PWDs issued under the interim final rule in two phases: high priority (within 15 days of receiving the requested list of named plaintiffs from plaintiffs’ counsel) and emergency situations (by March 2, 2021).
Employers that have already submitted a request in response to a December 3, 2020, announcement posted by OFLC have been issued a PWD and do not need to resubmit a second request for reissuance or take other additional action, OFLC said. For more information please see: https://www.dol.gov/agencies/eta/foreign-labor
Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship
The Departments of Labor (DOL) and Homeland Security (DHS) issued final rules making substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers. Below are selected highlights of the two rules and related guidance.
DOL final rule. On January 14, 2021, DOL published a final rule changing the prevailing wage methodology for several immigrant and nonimmigrant foreign worker programs. The final rule is effective March 15, 2021, but filers will not be required to use the revised prevailing wage methodology until July 1, 2021.
Among other things, the final rule changes the calculation of prevailing wages for jobs requiring certain employment-based immigrant visas or for jobs in the PERM, H-1B, H-1B1, and E-3 visa programs for which employers seek labor certification. The related interim final rule, issued in October 2020, was scuttled by court decisions. DOL said it made changes to the interim rule in response to comments. For example, the agency adjusted the Level I and Level IV wages downward to the 35th percentile and 90th percentile, respectively, and is implementing changes to how it uses data in the H-1B and PERM programs “that will further reduce the incidence of inappropriately inflated wages identified by commenters.” DOL also is adopting a “phase-in approach” to give employers and workers time to adapt.
DHS final rule. On January 15, 2021, DHS released a final rule on its website that it has sent for publication in the Federal Register. The rule amends its regulations, for petitions filed on or after the effective date of the regulation, to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between an H-1B petitioner and a beneficiary for the purposes of qualifying as a “United States employer.” DHS said it is not finalizing other provisions of the related interim final rule published in the Federal Register on October 8, 2020, and that it “plans to pursue future rulemaking for those provisions,” which were vacated by the U.S. District Court for the Northern District of California on December 1, 2020.
The final rule adopts a “common-law test” for determining which entities have an employment relationship with an H-1B worker. Under the common law, DHS explained, “multiple entities can have an employment relationship with a worker simultaneously.” Under a third-party placement arrangement, therefore, it is possible that the third-party entity would also be considered an employer of the H-1B worker and would be required to file a petition for the H-1B worker. DHS said that because adoption of the rule “may require adjustments to business practices on the part of employers, including third-party common-law employers,” the agency determined that it is appropriate for the rule to take effect 180 days from publication.
Related guidance. DOL’s Office of Foreign Labor Certification (OFLC) revised its interpretation of regulations concerning which employers of H-1B workers must file a Labor Condition Application (LCA). Under the interpretation announced on January 15, 2021, all common-law employers of H-1B workers, including any secondary employers meeting the common-law test, must file an LCA.
The OFLC bulletin explained that H-1B employment frequently involves primary employers, such as staffing agencies, that petition to hire H-1B workers, as well as secondary employers, such as staffing agencies’ clients, where the H-1B workers are assigned to work. Secondary employers must now comply with the statutory and regulatory requirements of the H-1B program if they are common-law employers of the H-1B worker, OFLC said.
Also, on January 15, 2021, DOL released a bulletin providing guidance to Wage and Hour Division field staff regarding H-1B program obligations for common-law employers “in light of interpretive changes being made” by DHS and DOL. Litigation is expected. For more information please see: https://bit.ly/3swjZsG
USCIS Admits to Delays in Issuing Receipt Notices Filed at Lockbox Facilities
U.S. Citizenship and Immigration Services (USCIS) is conceding that there are delays in sending out receipt notices after receiving properly filed applications and petitions. While USCIS is acknowledging delays of four to six weeks, in reality it is months. The agency said a variety of factors were to blame, including “COVID-19 restrictions, an increase in filings, current postal service volume and other external factors.” Among other things, USCIS said there may be “significant delays” in receipt notices for Form I-765, Application for Employment Authorization, based on categories related to F-1 students. For more information please see: https://www.uscis.gov/news/alerts/uscis-lockbox-updates
President Biden Sets in Motion a Flurry of Immigration Actions in First Days
Newly inaugurated President Joseph R. Biden wasted no time in his first days in office, launching a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals. Below is a summary:
- “Proclamation on Ending Discriminatory Bans on Entry to the United States.” This order revokes a variety of Trump administration orders and proclamations that prevented certain individuals from the United States, such as those from primarily Muslim countries and from largely African countries, from entering the United States. The new order states that these Trump administration orders and proclamations “are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” The order says that such orders and proclamations also “have undermined our national security,” “jeopardized our global network of alliances and partnerships” and are a “moral blight that has dulled the power of our example the world over,” in addition to separating families and “inflicting pain that will ripple for years to come.” Among other things, the order also states that when visa applicants request “entry to the United States, we will apply a rigorous, individualized vetting system.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/
- “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This order refers to DACA guidance issued in 2012 under the Obama administration that “deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.” The new order directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/
- “Reinstating Deferred Enforced Departure for Liberians.” This order defers through June 30, 2022, with some exclusions, “the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of DED [Deferred Enforced Departure] as of January 10, 2021.” The order also provides for employment authorization for such persons through June 30, 2022, and calls for a notice to be published in the Federal Register. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/reinstating-deferred-enforced-departure-for-liberians/
- “Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction.” Among other things, this order calls for a pause on construction work and funding for the southern U.S. border wall and an assessment of related legal, administrative, and contractual issues. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-termination-of-emergency-with-respect-to-southern-border-of-united-states-and-redirection-of-funds-diverted-to-border-wall-construction/
- “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities.” This order revokes a Trump administration order issued January 25, 2017 (“Enhancing Public Safety in the Interior of the United States”) and states that the Biden administration will “reset the policies and practices for enforcing civil immigration laws to align enforcement” with certain values and priorities, including protecting national and border security, addressing the humanitarian challenges at the southern border, ensuring public health and safety, and adhering to “due process of law as we safeguard the dignity and well-being of all families and communities.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/
- A memorandum to the heads of executive departments and agencies sent by Ronald Klain, President Biden’s chief of staff, states that President Biden is calling for a regulatory freeze pending review of any new or pending rules, with possible exceptions for emergency or urgent situations. The memo states that no rule should be proposed or issued “in any manner,” including by sending a rule to the Office of the Federal Register (OFR), “until a department or agency head appointed or designated by” President Biden reviews and approves the rule. President Biden ordered that rules that have been sent to the OFR but not published in the Federal Register to be immediately withdrawn. For rules that have been published or issued in any manner but have not yet taken effect, President Biden ordered department and agency heads to “consider postponing the rules’ effective dates for 60 days” so they can be reviewed. The memo also calls for consideration of opening a 30-day comment period. The memo calls for the Office of Management and Budget director to implement the regulatory review. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/
President Biden will soon send a proposed immigration reform bill to Congress. It will be interesting to follow these myriad proposals and actions as they make their way through the agencies, the regulatory and legislative processes, and the courts. Some Republicans have already signaled their resistance to aspects of the legislative proposals. Sen. Lindsey Graham (R-SC), for example, said comprehensive immigration reform “is going to be a tough sell given this environment, but doing DACA, I think, is possible.” Stay tuned.
According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:
- Provide worker protections and improvements to the employment verification process.
- Clear employment-based visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
- Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
- Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
- Reform family-based immigration.
- Increase diversity visas from 55,000 to 80,000.
- Promote immigrant and refugee integration and citizenship.
- Prioritize border controls that include technology and infrastructure improvements.
- Manage the border and provide various resources to protect border communities.
- Crack down on criminal organizations.
- Address underlying regional causes of migration.
- Reform immigration courts.
- Support asylum seekers and other vulnerable populations.
- Change the word “alien” to “noncitizen” in U.S. immigration laws.
For more information please see: https://www.nbcnews.com/politics/immigration/senate-republicans-throw-cold-water-biden-s-immigration-proposal-n1255232