On January 25, 2021, President Biden issued a proclamation extending COVID-related travel restrictions on individuals traveling to the U.S. from the Schengen Area, the U.K., Ireland & Brazil. Additionally, the order adds travel restrictions on individuals traveling to the U.S. from South Africa. The proclamation goes in effect on January 26, 2021 (January 30, 2021 for individuals traveling to the U.S. from South Africa) and is in effect indefinitely until the President lifts the travel ban(s). The proclamation will be reviewed on a month by month basis. Additionally, the previous restrictions on individuals from Iran and China are still in effect.
President Biden’s Immediate Immigration Plan
On January 21, 2020, President Biden signed six presidential executive actions that will affect immigration and visas in the U.S. immediately.
DACA: President Biden has instructed the Department of Homeland Security to preserve and fortify the DACA program and calls for legislation to provide a path to citizenship for DACA recipients.
Deportation of Liberians: Due to foreign policy reasons, President Biden reinstated and extended Deferred Enforced Departure (DED) for Liberians that are currently present in the U.S. Granting qualifying applicants protection from deportation, work authorization, and the opportunity to apply for adjustment of status (green card).
The Border Wall: Former President Donald Trump declared a national emergency at the southern border to allocate funds to construct a wall along the border. President Biden terminated the declaration of a national emergency, halted construction of the wall, and plans to reallocate funds to other methods of securing the border.
Census: To ensure that all inhabitants and those living in the U.S. are equally represented, President Biden revoked the previous administration’s order to include immigration status in the national census.
Immigration Enforcement: A previous executive action signed by former President Trump broadly increased interior immigration enforcement by encouraging local authorities to enforce federal immigration laws, and stripped funding from “sanctuary cities”. President Biden revoked this order and will adhere to previous policies regarding the enforcement of civil immigration violations.
Discriminatory Bans on Entry: The so-called “Muslim Ban” was several presidential proclamations and executive orders that prohibited people from primarily Muslim countries from seeking admission into the U.S. People from these countries will once again have the ability to apply for visas/admission and the current administration plans to assess the harms caused by the discriminatory bans.
A memo regarding pending regulatory actions issued by White House Chief of Staff, Ron Klain, states that pending rules at the Federal Register that have not been published yet must be withdrawn. Also, the effective dates the the rules that have been published but have not taken effect may be postponed.
As a result, the “Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule” will be immediately withdrawn. The rule meant to “clarify” how USCIS determines whether there is an “employer-employee relationship” to qualify as a “U.S. Employer.”
The effective date of the “H-1B Wage Selection Final Rule.” will be postponed until March 21, 21. The rule replaced the annual H-1B visa lottery that randomly selects foreign professionals with a process that prioritizes those offered the highest salaries for their occupation and geographic area.
In addition to the signing several executive orders on his first day in office, President Biden has also sent the “U.S. Citizenship Act of 2021” to Congress. U.S. Senator Bob Menendez (D-NJ) has announced that he will lead the legislative effort in the Senate to introduce the bill. Representative Linda Sanchez (D-CA) announced that she will lead the introduction of the bill House of Representatives. The Biden-Harris bill calls for immigration reform that will modernize the current immigration policies to treat noncitizens more humanly and will stimulate the economy.
DACA IS BACK!
In response to a court order issued on 12/4/2020, USCIS has announced that the DACA program will be fully restored, they will resume the previous DACA policies. Meaning USCIS will once again:
- Accept first-time requests for DACA
- Accept DACA renewal requests
- Accept applications for advance parole, and
- Extend current one-year deferred action and employment authorization to two years
Judge Nicolas George Garaufis of the U.S. District Court of the Eastern District of New York issued an order requiring the Department of Homeland Security to resume adjudicating DACA applications according to the DACA policy terms in place before September 4, 2017. The order required USCIS to comply with the ruling by 12/7/2020.
The eligibility requirements for first-time applicants are the following:
- The applicant arrived in the U.S. before their 16th birthday
- The applicant was under the age of 31 as of June 15, 2012
- The applicant has continuously resided in the U.S. since June 15, 2007
- The applicant has graduated from high school or is currently enrolled or is an honorably discharged veteran
- The applicant is over 15 years old (with some exceptions)
- The applicant has not been convicted of disqualifying crimes and does not pose a threat to national security or public safety
Newly eligible applicants:
- The applicant turned 15 years old after the program was rescinded in 2017 and they had previously met the eligibility requirements.
Advanced Parole allows applicants to travel temporarily outside of the U.S. for humanitarian, employment of educational reasons and re-enter the U.S. lawfully.
If DACA recipients received deferred action and work authorization for only one year (according to the July 2020 DHS memo), their current status has been extended to two years.
For assistance with renewing your DACA deferred action and work authorization or with applying for the first time, please send an email to [email protected] for more information.
U.S. District Court Sets Aside DHS Specialty Occupation and DOL Wage Rules for H-1Bs
In October 2020, the Department of Homeland Security (DHS) issued the Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of “specialty occupation” for purposes of the H-1B visa program. Concurrently, the Department of Labor (DOL) issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. Together, these rules would have set aside decades-old requirements for the H-1B program, both in terms of the definition of specialty occupation and in the computation of prevailing wage levels.
On December 1, 2020, the U.S. District Court for the Northern District of California set aside the DHS interim final rule and the DOL interim final rule in Chamber of Commerce, et al., v. DHS, et al. The court found that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b),” which defines the Administrative Procedures Act’s notice and comment requirements for agency rulemaking. USCIS announced on December 4, 2020 that it will fully comply with the court’s decision. In response to the court’s order setting aside the DOL Interim Final Rule, the DOL’s Office of Foreign Labor Certification (OFLC) announced its timeline for updating the FLAG system to incorporate the pre-IFR wage data. DOL must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under its interim rule, with the OES prevailing wage data that was in effect on October 7, 2020. DOL has also provided details on how to seek a redetermination of any prevailing wage determinations issued in accordance with the DOL Interim Final Rule wage system.
The attorneys at Curray York & Associates will continue to closely monitor potential changes to the H-1B program and provide updates when possible. For specific questions, please contact our office to schedule a consultation with one of our attorneys.
Public Charge Updates
Earlier this year, the Department of Homeland Security’s (DHS) rule on public charge inadmissibility went into effect, requiring the use of Form I-944 Declaration of Self-Sufficiency for adjustment of status applicants in deciding whether the applicant is inadmissible based on public charge grounds. Since then, the legal status of the public charge rule has been in limbo, as nationwide injunctions have halted implementation of the public charge rule only to have the injunction’s scope limited in the same week and completely reversed the week after. The amount of uncertainty surrounding the public charge rule has made it difficult to know how to advise clients.
Most recently, on December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions issued against the rule that were issued by the Northern District of California and the Eastern District of Washington. At this time, it remains unclear whether the preliminary injunction applies nationwide in scope or if it only applies to the plaintiff states (CA, DC, ME, OR, PA, WA, CO, DE, IL, MD, MA, MN, NV, NJ, NM, RI, HI). As of December 8, 2020, USCIS has not yet decided how to implement the state-specific injunction and has not updated its guidance since November 4, 2020. For now, we believe that the safest approach is to prepare and file the I-944 with adjustment of status applications.
The attorneys at Curray York & Associates will continue to closely monitor the situation and provide updates when possible.
November 2020 Visa Bulletin is Available!
The U.S. Department of State released the November 2020 Visa Bulletin this morning. Visa availability in the employment-based categories will basically stay the same as in October 2020. Additionally, USCIS has announced that it will accept filings based on the “Dates for Filing” chart.
Without Notice USCIS Increases Premium Processing Fees, But Doesn’t Expand the Program
On Friday, October 16, 2020, USCIS announced that it will increase the fee for premium processing from $1,440 to $2,500 starting on Monday, October 19, 2020. USCIS is implementing the portion of the Continuing Appropriations Act, 2021 & Other Extensions Act. (Pub. L. No. 116-159) that was enacted on October 1, 2020 and authorizes the agency to increase premium processing fees. Thus, any I-907 request for premium processing postmarked on or after October 19, 2020 must include the new fee amount. There is an exception for H-2B seasonal workers and R-1 religious workers in that the fee is only increasing to $1,500.00. Notably, the law enacted on October 1st also authorizes USCIS to expand premium processing to include other types of forms and applications. However, USCIS is not exercising its authority to expand the premium processing service at this time.
Proposed Changes to F, J, & I Visa Holders’ Period of Stay
On September 25, 2020, the ICE published a proposed rule in the Federal Register which, among other things, eliminates admission for duration of status for F, J and I (International Media) visa holders. The comment period ends on October 26, 2020, after which the agency is required to review and consider all comments before publishing the final rule. Currently, F and J visa holders are admitted to the U.S. for their “duration of status” or the time it takes to finish their program as long as they are making “normal progress” towards the completion of the program. The new rule limits the period of admission for F and J visa holders to 2 or 4 years based on their program end date. This rule will substantially change the way DHS determines whether F or J visa holders are maintaining their status, would subject them to harsh penalties for failure to maintain status, and would require the filing of extension applications on form I-539 to extend a program end-date or apply for OPT.
Forbes Article by Stuart Anderson on the impact of the USCIS and USDOL new rules on H-1B Visas
In this Forbes article, Stuart Anderson provides a good summary of the USCIS and USDOL rules that will change the H-1B visa program by substantially increasing the prevailing wages for H-1B occupations and redefine “specialty occupation.”
USCIS Proposes Major Changes to the H-1B Program
On October 6, 2020, USCIS will be providing an advance copy of a regulation that will significantly change the definition of “Specialty Occupation” for H-1B visa purposes. The rule will narrow the definition of “specialty occupation;” require U.S. companies to “make real offers to ‘real’ employees” by closing loopholes and preventing the displacement of U.S. workers; and enhance DHS enforcement mechanisms. The rule will be published in the Federal Register on October 8, 2020 and goes into effect 60 days after publication (December 7, 2020).
https://public-inspection.federalregister.gov/2020-22347.pdf