Immigrant Workers Who Report Labor Violations Will Be Protected Under This New Policy

Immigrant workers who are the victims of labor exploitation are often faced with a difficult choice: report the coercive conduct, or remain silent out of fear of retaliation and immigration consequences. Under a new Department of Homeland Security policy, noncitizen workers have been given a shield: a promise by ICE that any worker who comes forward to report labor abuses will be protected from deportation.

Under the new policy, announced on January 13, noncitizen workers who are either the victim of, or a witness to, any violation of labor rights can receive “deferred action,” temporary permission to remain in the United States legally. Deferred action also comes along with eligibility to apply for work authorization, which can ease a noncitizen’s transition to a new employment relationship.

This new process expands on other worker-friendly policies adopted by the Biden administration. In October 2021, Department of Homeland Security Secretary Mayorkas issued a memorandum ordering DHS to halt large worksite raids and instead to focus its efforts on targeting unscrupulous employers.

Taken together, these policies represent some of the strongest efforts by any presidential administration to protect vulnerable immigrants from labor exploitation.

Read more about the new policy at Immigration Impact.

H1B Cap Reached for FY 2023: Alternatives for Specialty Workers

H-1B Cap Reached for FY 2023

On August 23, 2022, U.S. Citizenship & Immigration Services announced that it had received enough petitions to meet the congressionally mandated annual 65,000 regular H1B cap and the 20,000 master’s H1B cap for fiscal year 2023. Therefore, because the annual quota of 85,000 total visas has been met for the next fiscal year, USCIS will not conduct additional lotteries.

USCIS has sent non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H1B numerical allocations, but that were not selected, will now indicate “Not Selected.” The registration for FY24 will open in March 2024 for the fiscal year beginning on October 1, 2024.

Not Selected in the H-1B Lottery? Consider These Alternatives, Especially for STEM Foreign Graduates.

If you were not selected in the annual H1B lottery, there may be other options to keep talented foreign workers contributing in the U.S. Wondering if the options below might be a fit for you? Call us to discuss the requirements and processing times in more detail.

• Pursue PERM/labor certification. So long as the employee is not a national of India or China, employers should consider pursuing the recruitment-based, 3-step green card process which begins with a labor certification.

  • Under current processing times, the sponsored employee may be able to file for adjustment of status and interim employment authorization for themselves and eligible family members within 12 months.

  • For those eligible for STEM OPT and not subject to retrogression, the timeline may allow for employment authorization before the end of STEM OPT.

  • This is a great job market for STEM graduates making it a great time for the labor certification process.

• Pursue a National Interest Waiver (NIW).

  • The Biden Administration has made it a priority to keep STEM foreign graduates in the United States and, thus, if the employee’s research or work is in the national interest, this is a terrific option.

  • For those eligible for STEM OPT and not subject to retrogression, the ability to concurrently file an NIW Immigrant Petition and applications to adjust status may allow for employment authorization before the end of STEM OPT.

• Pursue a nonimmigrant Extraordinary Ability O1 Petition.

  • This is an option for qualifying noncitizens, including those from India or China, if they can satisfy at least 3 of the regulatory criteria, such as

    • publication of scholarly articles, preferably first-author and in high-impact journals;

    • service as a judge of the work of others (e.g., manuscript/abstract review);

    • original contributions of major significance in the field, as validated by experts; or

    • nationally or internationally recognized awards or honors.

  • There is no prevailing wage requirement.

  • The O1A Petition can be adjudicated within 15 days via premium processing!

• Pursue a Treaty Visa. Nationals of the following countries may be eligible for employment visas that are not subject to a cap for certain occupations:

  • Canada/Mexico: USMCA (TN) classification

  • Chile/Singapore: H1B1 Specialty Workers

  • Australia: E3 Specialty Workers

• Consider industry-academic partnerships with an institution of higher education to pursue cap-exempt H1B. Employees who work at least part-time for a cap exempt H1B employer (e.g., institution of higher education, affiliated non-profit, etc.) can have an otherwise cap subject employer pursue a concurrent H1B on their behalf for the same duration as their cap exempt H1B employment.

Every situation is unique and multiple factors can influence eligibility for classifications. If you have missed out on selection in the FY2023 H1B Lottery, consider whether another path may be available.

Employment Authorization Expedites for Healthcare Workers

As of January 3, 2022, certain healthcare workers with pending I-765 Applications for Employment Authorization can request expedited processing. The new USCIS policy applies to applicants seeking renewal employment authorization documents (EADs) whose current EADs expire within 30 days or less, or already has expired. The guidance on who qualifies as a healthcare worker is expansive, including not only traditional healthcare workers who provide direct patient care (e.g., physicians, dentists, nurses, pharmacists, social workers, etc.), but also workers involved in medical research and those required to support such areas as clinical operations, infrastructure, support services, administration, security, and intelligence operations across the full spectrum of healthcare including those working in accounting, administrative, engineering, certification, licensing, food service, housekeeping, medical records, information technology, and other sectors.

To request expediting processing, applicants are instructed to contact the USCIS Contact Center at 1-800-375-5283 (TTY 1-800-767-1833) and be prepared to provide evidence of current employment as a healthcare worker. Those whose expedite requests are granted should keep in mind that USCIS may still take several weeks to issue the new EADs. If you need the Firm’s assistance in requesting expedited processing, please contact us.

Major Settlement Changes How USCIS Adjudicates Work Permits for H4 and L2 Nonimmigrant Spouses

The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown achieved a historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization.

The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.

Watch this space as we await the details of how the settlement agreement will be implemented.