Court of Appeals Remands DACA for Consideration of New Rule; Stay Remains in Place

On October 5, 2022, the Fifth Circuit Court of Appeals partially upheld a July 2021 district court decision finding that the original DACA program (established in 2012) was unlawful; however, the Fifth Circuit sent the case back for the district court to consider the Department of Homeland Security’s new 2022 DACA regulation, set to take effect at the end of this month. As a result of this ruling, existing DACA recipients retain their grant of DACA and are allowed to reapply for (and receive) renewal, but the government cannot grant new DACA applications. The Fifth Circuit reasoned that a district court is in the best position to review the administrative record in the rulemaking proceeding and to determine whether the court’s holdings as to the 2012 DACA memorandum fully resolve issues concerning the 2022 final rule. USCIS will continue to accept and process DACA renewal requests, and continue to accept but not process initial DACA requests.

The court ruling does not affect ICE’s enforcement policies. Like the earlier district court ruling, the appeals court ruling does not require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.

Reminders for DACA Recipients and Employers:

• DACA recipients with current, unexpired Employment Authorization Documents (EADs) continue to be authorized to work.

• Workers who already have DACA can continue to renew their DACA EADs.

• DACA recipients are not required to tell employers they have DACA.

• Employers are not required or encouraged to ask their employees or job applicants about their immigration status or whether they have DACA.

• Federal laws such as the Immigration and Nationality Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981 protect employees from employment discrimination based on several factors, including their citizenship, immigration status, national origin, and race. State and local laws may offer additional protections to workers.

• Firing employees who have the legal right to work, such as DACA recipients with EADs, based on their immigration status, national origin, or assumptions about these characteristics may violate federal, state, or local law.

This remand heightens the urgency for Congress to act immediately and protect Dreamers permanently.

USCIS to Allow Resubmission of Certain FY 2021 H-1B Petitions Rejected Due to Post-10/1/20 Start Date

On June 23, 2021, USCIS announced it will accept resubmitted fiscal year (FY) 2021 H-1B cap-subject petitions that were rejected or administratively closed solely because the requested start date was after October 1, 2020. Petitioners whose FY 2021 petition was rejected or administratively closed solely because the petition was based on a registration submitted during the initial registration period, but requested a start date after October 1, 2020, may re-submit that previously filed petition, with all applicable fees, at the addresses listed on USCIS’ website. Such petitions must be resubmitted before Oct. 1, 2021. If properly resubmitted, the agency will consider the petition to have been filed on the original receipt date.

DHS Issues New Regulation Changing the H-1B Lottery Process; Challenges Likely (Jan. 8, 2021)

On Thursday, USCIS announced the final rule that will modify the H-1B cap selection process and amend current lottery procedures, relying on wage levels to select petitions for the temporary employment program. USCIS claims that modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions. However, the government’s legal basis for making such changes is tenuous, at best.

The final rule will be effective 60 days after its publication in the Federal Register, on March 9, 2021; challenges are expected. Most immediately, the new Biden Administration could delay the rule’s effective date, and pursue the rescission process under the Administrative Procedures Act. In addition, litigation is all but assured, as the rule was issued under the tenure of Chad Wolf, who courts have found is not lawfully exercising the powers of the Secretary of Homeland Security, and because the Department lacks legal authorization to make such changes under the statute.

To implement the rule, USCIS would be required to reprogram the H-1B Registration website that launched in 2020; given the time frame involved this, too, is likely to be a challenge. When the H-1B Registration program was first implemented in 2019, the re-vamped process of conducting the lottery had to be delayed a year while the website issues were worked out.

Goldblum & Pollins will continue to provide updates on the status of the new regulation and its impact on the current year’s cap-subject H-1B selection process.