DOL Announces Additional Delay in Effective Date of Regulation Affecting Wages for H-1B and PERM Workers (Mar. 22, 2021)

The Department of Labor (DOL) issued a Federal Register notice proposing to further delay the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, for a period of eighteen months or until November 14, 2022. The DOL has also proposed corresponding delays to the rule’s transition dates. The DOL invites public comment on the proposed delay on or before April 21, 2021.

Under the law, an employer must pay an H-1B visa holder the higher of the prevailing wage or actual wage paid to similar U.S. workers, and in the permanent residence context, the employer generally must pay at least the DOL-determined prevailing wage. DOL currently determines the prevailing wage by using data from the government’s Occupational Employment Statistics (OES) wage survey and using a mathematical formula to create four levels of wages for each occupation. The regulation about would change how DOL's National Prevailing Wage Center (NPWC) applies its four wage-level system to generate prevailing wage determinations when Occupational Employment Statistics (OES) data is used as the wage data source. The result of the proposed changes would be significantly higher NPWC prevailing wage determinations impacting both the temporary (e.g., H-1B) and permanent (PERM) programs.

Citizenship Paths For Dreamers, Farmworkers Pass House; Future in Senate Uncertain (Mar. 19, 2021)

On Thursday, House Democrats passed a pair of bills that would create a pathway to citizenship for Dreamers and some migrant farm workers, taking a gradual approach compared to President Biden’s major immigration package. The Dream and Promise Act would provide certainty to undocumented people brought to the U.S. as children whose ability to go to school, get work and even remain in the country has hung in the balance from administration to administration. The bill would also allow those with Temporary Protected Status (TPS) to apply for citizenship, a group from countries around the world that ranges from those fleeing civil unrest and natural disasters as early as the 1990s to Venezuelans deemed eligible for the status by the Biden administration earlier this month. In total, the Dream and Promise Act would help naturalize nearly 4.5 million people.

The House on Thursday also approved legislation that provides a citizenship pathway for seasonal migrant farmworkers, allowing those who have been traveling to the U.S. for work for a decade to apply for citizenship after another four years. 

That bill, which passed 247-174, is expected to provide citizenship to more than a million migrants, and it also ups the number of agricultural visas available to those seeking to come to the U.S. for work.

Both face an uncertain future in the Senate, where Republicans continue to push for increased border security as a condition for action on bills benefiting Dreamers and others.

Though the two bills together would provide a substantial number of noncitizens with the ability to naturalize, it falls short of the 11 million figure that would be covered by the U.S. Citizenship Act of 2021, a major immigration package pushed by Biden.

Though the White House issued statements of support for both bills, it also urged the passing of Biden’s bill, stressing the need “to reform other aspects of our immigration system.”

UPDATED: DHS Confirms It Is No Longer Enforcing the 2019 Public Charge Rule (Mar. 9, 2021)

In a statement posted to the USCIS website on Wednesday, DHS writes:

On March 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted its stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020, decision vacating the Public Charge Final Rule nationwide. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. In turn, USCIS is applying the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented, to the adjudication of any application for adjustment of status that was pending or received on or after March 9, 2021. In addition, USCIS is adjudicating any application or petition for extension of nonimmigrant stay or change of nonimmigrant status pending or received on or after March 9, 2021, consistent with regulations in place before the Public Charge Rule was implemented; in other words, USCIS is not applying the “public benefits condition.”

* * *

The Supreme Court on Tuesday dismissed the petition for certiorari in DHS, et al. v. State of New York, et al. based on a joint stipulation to dismiss filed by the parties, in the case challenging a controversial Trump-era regulation that makes it more difficult for noncitizens applying for immigration benefits if they have used certain public assistance, such as Medicaid, food stamps, and housing vouchers.

Last month, the justices agreed to take up a challenge to the so called "public charge" rule brought by The Legal Aid Society, various groups and state and local officials. But in a brief letter to the court on Tuesday, Acting Solicitor General Elizabeth Prelogar told the justices that both sides had agreed that the challenge should be dismissed.

As reported by CNN, Susan Welber, a staff attorney at the Legal Aid Society, said in an interview that the filing means that the Trump rule will "now be blocked while the Biden administration continues its review process and decides what the new will be."

In a statement released today noting that it is “neither in the public interest nor an efficient use of limited government resources” to continue to defend the Public Charge Rule, DHS announced that the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or enjoining its enforcement. Per DHS, “Once the previously entered judicial invalidation of the 2019 Rule becomes final, the 1999 interim field guidance on the public charge inadmissibility provision (i.e., the policy that was in place before the 2019 Rule) will apply.”

Accordingly, the government has moved to dismiss the appeals pending before the circuit courts of appeals as well, including Cook County v. Wolf, pending in the Seventh Circuit Court of Appeals. Today, the Seventh Circuit issued its mandate in the Cook County case, meaning the decisions of the district court permanently vacating the rule will become the law of the land in the absence of further developments.

We are waiting on further guidance from USCIS on implementation of these expected orders and will provide additional updates as they are released. As of this moment, Form I-944 remains in effect.

President Joe Biden had called for the immediate review of the rule in an executive order which, he said, "should consider and evaluate" the effects of the rule and recommend steps agencies should take "to clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities."

USCIS Extends Flexibilities to Certain Applicants for OPT Impacted by Receipt Delays (Mar. 1, 2021)

USCIS has announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021, inclusive.

USCIS has experienced significant delays in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students, and is permitting the following flexibilities to assist certain applicants for OPT impacted by the delays.

14-month OPT Period Flexibilities

• F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period.

• To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.

• As of February 26, 2021, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

• F-1 students requesting post-completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.

Refiling Following Rejection

• Applicants for OPT must file the Form I-765 during certain timeframes. However, USCIS has recognized that due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.

• USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:

1. The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and

2. USCIS subsequently rejected it.

• Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.

• Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from the DSO, as long as they originally submitted an application for post-completion OPT within 30 days of the DSO’s recommendation or an application for STEM OPT within 60 days of the DSO’s recommendation as required by the regulations.

• Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.

Missing or Deficient Signatures

Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency. USCIS encourages applicants filing Form I-765 to review the form instructions on its website to ensure their application is complete before filing it.

If you are a student seeking OPT or STEM OPT and have been impacted by the receipt delays at USCIS or a rejection as described above, speak with your international advisor and should you need assistance requesting the flexibilities above, contact us.

BREAKING: President Biden Rescinds Former President Trump's Immigrant Visa Ban (Feb. 24, 2021)

President Joe Biden on Wednesday rescinded the immigrant visa ban on new lawful permanent residents applying from abroad, saying the ban and its extensions failed to advance American interests. This ban was most harmful for family members of U.S. citizens and permanent residents and diversity lottery winners, as well as some employees of U.S. companies.

Biden's order revokes Presidential Proclamation 10014 and its two extensions ahead of their expected March 31 expiration date. Trump first set the ban in April 2020, citing the COVID-19 pandemic. However, the ban barred an estimated 48,000 spouses and minor children of permanent residents from entering the U.S., and an estimated 12,000 employees of U.S. businesses. In a recent court filing, the Department of State revealed that it has a backlog of 473,000 documentarily qualified family-based immigrant visa applicants—meaning rescission of the ban is merely the first step.

Proclamation 10014 "harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here. It also harms industries in the United States that utilize talent from around the world," BIden’s order said. The rescission is overdue good news for immigrants, U.S. families, and U.S. businesses.

USCIS Announces Plans to Revert to the 2008 Version of the Naturalization Civics Test (Feb. 22, 2021)

U.S. Citizenship and Immigration Services announced today it is reverting to the 2008 version of the naturalization civics test.

On December 1, 2020, USCIS implemented a revised naturalization civics test (2020 civics test) which was longer and more difficult. The Biden Administration concluded the 2020 civics test development process, content, testing procedures, and implementation schedule could inadvertently create potential barriers to the naturalization process, and therefore under the framework of the Executive Order on Restoring Faith in Our Legal Immigration Systems Executive Order, is eliminating the changes to make the process more accessible to all eligible individuals.  

Applicants who filed their naturalization applications on or after Dec. 1, 2020, but before March 1, 2021, whose initial examination (interview) is scheduled before April 19, 2021, will have the choice to either take the 2008 civics test or the 2020 civics test. USCIS will notify applicants who are affected by the change.

If the initial interview is scheduled on or after April 19, 2021, applicants will take the 2008 civic test. 

Contact your attorney under “Our Team” if you have questions about your naturalization process.

H-1B Registration Opens March 9; Are You Ready? (Feb. 22, 2021)

USCIS announced that the initial registration period for cap-subject H-1B lottery for the Fiscal Year 2022 will open at noon EST on March 9 and run through noon EST on March 25. USCIS will notify the selected registrants by March 31 and permit the filing of H-1B cap-subject petitions for selected beneficiaries as early as April 1. Contact us for assistance with the H-1B Registration process, or to learn more about H-1B sponsorship.

As we approach the new H-1B season, we have seen further steps by the Biden Administration to roll back changes made under the prior administration, including:

• On February 4, 2021, USCIS published an advance copy of a final rule delaying the effective date of the rule that would have replaced the current randomized cap-subject H-1B lottery selection process with a wage-based and education-based selection process. The effective date of the rule has been pushed back to December 31, 2021, giving the Biden Administration time to reexamine the rule. Consequently the Fiscal Year 2022 H-1B Lottery will remain randomized.

• On February 3, 2021, USCIS rescinded its 2017 policy memorandum impacting H-1B sponsorship for Computer Programmer positions based on the “specialty occupation” determination. The rescission of the 2017 guidance, which had instructed USCIS officers to treat Computer Programming as an occupation not “normally” requiring a bachelor’s degree for entry, came as a result of the Ninth Circuit’s decision in Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020). There, the Court ruled that USCIS’ denial of the H-1B visa was arbitrary and capricious and that USCIS misconstrued the language of the Occupational Outlook Handbook in an attempt to support an unfounded claim. Based on the restoration of USCIS’ 2000 guidance, Computer Programmer may once again be considered a specialty occupation.

Senate Confirms Mayorkas As First Latino To Lead DHS (Feb. 3. 2021)

The U.S. Senate voted 56-43 on Tuesday to confirm Alejandro Mayorkas as secretary of the Department of Homeland Security, installing the first Latino and first former refugee to fill the cabinet position overseeing U.S. immigration policy and border security.

Mayorkas, who previously worked for the department during the Obama administration, faces the task of bringing structure to the agency, which has not had a confirmed secretary since 2019.

Preview of Executive Immigration Actions Expected Today (Feb. 2, 2021)

President Biden is set to sign a series of executive actions on Tuesday to begin to reunite migrant children separated from their parents after crossing the U.S. border, take steps to restore the asylum system, and review the Trump administration's changes for the legal immigration system.

One of the actions creates a task force to find ways to reunite children in the United States with their parents, deported without them — a job made challenging by a lack of records.

A second order looks at how to address the surge of migrants seeking asylum in the United States in recent years, and will look at how to replace the Migrant Protection Protocols program — what former President Trump referred to as "Remain in Mexico."

The third order requires agencies to do a "top-to-bottom review of recent regulations, policies and guidance that have set up barriers to our legal immigration system." The first one to go: Trump's "public charge" rule, which prevented immigrants from getting permanent resident or "green card" status if they had or were likely to require public benefits such as housing subsidies. This action in particular makes clear that rolling back former President Trump's hardline immigration measures will not happen overnight, as rescinding an agency regulation like public charge will require complying with the notice and comment requirements of the Administrative Procedures Act—disappointing news for those facing the onerous Form I-944 and its attendant document demands.

We will update this page with further details as the Executive Orders are unveiled.

Biden Administration withdraws rule that would have terminated H-4 EAD (Jan. 25, 2021)

On January 25, 2021, the Biden administration withdrew from review the Trump administration’s proposed rule that would have rescinded the H-4 EAD program.

For close to five years, spouses of H-1B workers holding H-4 EADs—who number approximately 100,000 and who are primarily women and from India—have been living with the uncertainty that their work authorization could be eliminated at any time. In addition to the Trump administration’s proposed rule, there has been ongoing litigation challenging H-4 work authorization.

The withdrawal provides much needed reassurance to H-4 EAD holders and their employers regarding ongoing availability of the program. However, excessive delays in U.S. Citizenship & Immigration Services’ adjudication of these benefits requests and the lack of an automatic extension of work authorization while renewals are pending continue to wreak havoc for those in the workforce and their employers.

Goldblum & Pollins continues to monitor developments in this program.

SEVP Rescinds Broadcast Message Announcing Creation of New OPT Employment Compliance Unit (Jan. 27, 2021)

The Student and Exchange Visitor Program (SEVP), a component of Immigration and Customs Enforcement (ICE) that oversees international student and scholar programs, announced on January 26, 2021 that it is rescinding Broadcast Message 2101-02: New SEVP Unit to Oversee Employment Compliance in the OPT Programs and Report on Impact of U.S. Workers, issued on January 13, 2021. SEVP determined that is already performing much of the work outlined in the message, and, as such, the unit’s creation is not necessary at this time.

The January 13 Broadcast Message, issued in the last days of the Trump Administration, proposed to create a new unit within SEVP, dedicated to full-time to compliance matters involving wage, hours, and compensation within OPT, the OPT extension, and Curricular Practical Training (CPT) programs, and responsible for recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure that the OPT programs operate in a lawful manner at U.S. worksites.

Dep't of Labor Announces Plan for Reissuing Certain Prevailing Wage Determinations Issued Under Its Prevailing Wage Rule (Jan. 26, 2021)

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced that it is taking steps to comply with a modified order issued by the U.S. District Court for the District of Columbia in Purdue University, et al. v. Scalia, et al. and Stellar IT, Inc., et al. v. Scalia, et al., to reissue certain Prevailing Wage Determinations (PWDs) issued from October 8, 2020, through December 4, 2020, under the wage methodology for the Interim Final Rule (IFR), Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States (85 FR 63872, 10/8/20). The Interim Final Rule dramatically increased prevailing wage levels impacting the permanent labor certification (PERM) and H-1B programs without forewarning, and was immediately challenged in a series of federal lawsuits. OFLC will reissue certain PWDs issued under the DOL IFR in two phases:

• PHASE I: High Priority PWDs : PWDs issued to the named Purdue Plaintiffs and Associational Purdue Plaintiffs (identified by Plaintiffs’ counsel); PWDs requested to support H-1B, H-1B1, or E-3 filings; PWDs issued that resulted in the default wage rate of $100.00 per hour or $208,000 per year; and PWDs issued for job opportunities in healthcare related occupations, as defined by the Standard Occupational Classification system codes 29-0000 and 31-0000 series.

• PHASE II: Emergency Situations : Requests to reissue a PWD submitted by February 8, 2021 from employers attesting that they have an emergency situation necessitating reissuance of a PWD. An emergency situation includes the following circumstances:

  • PWDs issued in support of a labor market test conducted under the PERM program that is set to expire in the next 60 days;

  • PWDs issued to support the filing of a PERM application within the next 60 days to allow for extension of H-1B status or otherwise is required for a foreign worker beneficiary to be able to remain in the U.S. or maintain work authorization;

  • PWDs issued to support the filing of a PERM application where a child of a foreign worker beneficiary potentially will age out within one year; or

  • Any other PWD issued where the employer attests to having an emergent need for a reissuance not otherwise covered in this list.

Employers with emergency situations must affirmatively request reissuance of a PWD. Speak with your attorney to determine if you fall into this category!

Employers that have already submitted a request in response to OFLC’s December 3, 2020 announcement have been issued a PWD and do not need to resubmit a second request or take other action.

President Biden reinstates COVID-related entry bans on UK, Ireland, Schengen Area, and Brazil; Expands ban to South Africa (updated Jan. 27, 2021)

Today, President Biden issued a Proclamation to restrict and suspend the entry into the United States, as immigrants or nonimmigrants, of noncitizens of the United States (“noncitizens”) who were physically present within the Schengen Area, the United Kingdom (excluding overseas territories outside of Europe), the Republic of Ireland, the Federative Republic of Brazil, and the Republic of South Africa during the 14-day period preceding their entry or attempted entry into the United States. The Proclamation goes into effect at 12:01 AM EST on Tuesday, January 26, 2021, and the restrictions on travel from South Africa go into effect at 12:01 AM EST on Saturday, January 30, 2021.

The Proclamation reimposes COVID-related bars for those traveling from the UK, Ireland, Schengen Area and Brazil that were set to expire tomorrow under a proclamation by former President Trump, and extends the ban to those traveling from South Africa. The bars are tied to the ongoing transmission of three variants of COVID-19 originating in the UK, Brazil, and South Africa which may lead to increased spread of the disease or reinfection.

The Proclamation does not apply to:

1. any lawful permanent resident of the United States;

2. any noncitizen national of the United States;

3. any noncitizen who is the spouse of a U.S. citizen or lawful permanent resident;

4. any noncitizen who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;

5. any noncitizen who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;

6. any noncitizen who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

7. any noncitizen traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;

8. any noncitizen traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any noncitizen otherwise traveling to the United States as air or sea crew;

9. any noncitizen seeking entry into or transiting the United States pursuant to one of the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories), or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;

10. any noncitizen who is a member of the U.S. Armed Forces and any noncitizen who is a spouse or child of a member of the U.S. Armed Forces;

11. any noncitizen whose entry would further important United States law enforcement objectives, or whose entry would be in the national interest.

We have received confirmation from Department of State that the "National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland” remain in place and will continue.

More Day One Immigration Actions by the Biden Administration (Jan. 21, 2021)

President Joe Biden signed a number of executive orders and directives within hours of taking office on Wednesday, including lifting travel restrictions against individuals from predominantly Muslim countries and halting construction of the U.S-Mexico border wall.

Here is a closer look at immigration-related executive actions the new president took after his swearing in:

Deferred Action for Childhood Arrivals

Biden signed a presidential memorandum directing the U.S. Secretary of Homeland Security to take "all appropriate actions under the law" to preserve Deferred Action for Childhood Arrivals, which provides deportation relief and work authorization to undocumented immigrants brought to the U.S. at a young age.

"The president-elect is committed to preserving and fortifying DACA," Biden's transition team said.

As of June 2020, more than 645,000 people are DACA recipients, according to data available from the U.S. Department of Homeland Security.

Trump rescinded DACA in September 2017, a decision that the Supreme Court deemed unlawfully arbitrary and capricious in a 2020 ruling. However, DACA continues to face a legal challenge from a coalition of states, led by Texas, which contend that then-President Barack Obama overstepped when he implemented the program in 2012.

Undocumented Immigrants and the Census

Yet another executive order revoked Trump's directive to exclude undocumented immigrants from the 2020 census, which is used to allocate federal resources and draw congressional districts.

"At no point since our Nation's Founding has a person's immigration status alone served as a basis for excluding that person from the total population count used in apportionment," Biden said.

Biden's order also called on the U.S. Secretary of Commerce to "take all necessary steps" to ensure that the population count is accurate.

Enforcement of Immigration Policy

Biden also rescinded Trump's January 2017 executive order broadening the categories of undocumented immigration prioritized for removal.

"My administration will reset the policies and practices for enforcing civil immigration laws," Biden said in the brief order.

Protections for Liberian Immigrants

Biden extended deportation protections and work permits for Liberians in the U.S. until June 30, 2022.

The policy, laid out in a presidential memorandum, will direct the head of Homeland Security to ensure the timely processing of Liberians' residency applications.

The U.S.-Mexico Border Wall

Through a presidential proclamation, Biden declared an immediate end to the national emergency Trump declared to divert already-appropriated defense funding to border wall construction activities.

The proclamation also places an immediate freeze on the border wall while Biden's administration reviews the "legality of the funding and contracting methods used" and determines how to redirect the diverted funds, according to the new president's transition team.

President Biden issues Proclamation Rescinding Trump's 2017 Travel Ban; Puts Hold on "Midnight" Rules; a New Immigration Bill (Jan. 20, 2021)

In the hours after his inauguration as the 46th President of the United States, Joseph R. Biden, Jr. signed a series of Executive Orders, including a Proclamation on Ending Discriminatory Bans on Entry to The United States, revoking Executive Order 13780 of March 6, 2017 (Protecting the Nation From Foreign Terrorist Entry Into the United States)—commonly referred to as the Travel Ban or Muslim Ban—as well as Proclamation 9645 of September 24, 2017 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), Proclamation 9723 of April 10, 2018 (Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and Proclamation 9983 of January 31, 2020 (Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats).

President Biden’s Proclamation further directs the Secretary of State and all Embassies and Consulates, consistent with applicable law and visa processing procedures, to resume visa processing in a manner reflecting the revocation of the Travel Ban and “vetting” proclamations. This includes reporting on those visa applicants who were awaiting consideration of waivers of Proclamation 9645 or 9983; creating a reconsideration process for applicants whose visa applications were denied under Proclamation 9645 or 9983; and a review of current visa screening practices.

The President, through Chief of Staff Ronald Klain, announced a regulatory freeze in order to ensure that the President’s appointees or designees have the opportunity to review any new or pending rules. Under this guidance, rules which have been sent to be published in the Federal Register, but not yet published—including the Department of Homeland Security’s rule substantially changing the H-1B program—will be immediately withdrawn. In addition, rules that have been published in the Federal Register but have not yet taken effect will have their effective dates delayed 60 days to permit review and further action. This includes the newest iteration of the Department of Labor’s wage rule impacting the H-1B and PERM programs, and the DHS rule changing the H-1B lottery process.

The President also announced acting heads of federal agencies, pending the Senate confirmation of his cabinet nominees, including:

• Department of Homeland Security, David Pekoske (pending confirmation of Alejandro Mayorkas);

• Department of State, Dan Smith (pending confirmation of Antony Blinken); and

• Department of Labor, Al Stewart (pending confirmation of Marty Walsh).

Additional actions impacting immigration are expected to be announced near the end of January. Moreover, the President has sent an ambitious immigration reform bill to Congress that would create an eight-year path to citizenship for undocumented immigrants, bolster border security with new screening technologies, and deliver aid to Central America.

The bill, known as the US Citizenship Act of 2021 and outlined in a four-page summary shared with reporters, would represent the most sweeping immigration reform package passed since 1986.

Stay tuned for further developments, as the Biden Administration has promised to make immigration a priority.

CDC to Require COVID Testing for All International Arrivals to the U.S. (Jan. 13, 2021)

The Centers for Disease Control published a notice on January 12, 2021 requiring air passengers to the U.S. to obtain a COVID test before departure. Specifically,

"Air passengers are required to get a viral test (a test for current infection) within the 3 days before their flight to the U.S. departs, and provide written documentation of their laboratory test result (paper or electronic copy) to the airline or provide documentation of having recovered from COVID-19. Airlines must confirm the negative test result for all passengers or documentation of recovery before they board. If a passenger does not provide documentation of a negative test or recovery, or chooses not to take a test, the airline must deny boarding to the passenger.

The order will become effective on January 26, 2021.

More information can be found here: https://www.cdc.gov/media/releases/2021/s0112-negative-covid-19-air-passengers.html

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.

Trump Extends Immigrant and Nonimmigrant Visa Bans to March 2021 (Dec. 31, 2020)

On December 31, 2020, President Trump issued a proclamation continuing Proclamations 10014 and 10052, which suspended the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic.

The White House issued a proclamation hours before Trump's original orders were set to expire. As a result, the entry of immigrants (intending permanent residents) and nonimmigrants on various visas will be prohibited through March 31, 2021 unless the incoming Biden administration rescinds the bars before then.

Challenges to both bans in litigation have resulted in multiple exceptions and carve-outs; speak with our attorneys to determine if you are impacted.

DOL Announces Plan to Reduce Prevailing Wages to Prior Amounts in Wake of Two Court Decisions (Dec. 4, 2020)

On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, finding that the U.S. Department of Labor (DOL) failed to show it had good cause to forgo advance notice and comment under the Administrative Procedure Act when it released a new regulation dramatically increases the prevailing wages applicable to H-1B and permanent residence filings. on December 3, 2020, the U.S. District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604, applying to the plaintiffs in that case.

Late on December 3, the DOL announced its plan to comply with the court orders, returning the Occupational Employment Statistics (OES) prevailing wage data that was in effect on October 7, 2020:

Implementation Timeframe for Filing LCAs

• All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.

• Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online; however, employers and their authorized attorneys or agents will temporarily not be able to submit applications for processing where OES survey data is the prevailing wage source.

• Beginning around 8:30AM Eastern Time on December 9, 2020, employers and their authorized attorneys or agents will be able to submit new LCAs, Form ETA-9035/9035E, using the OES survey data that was in effect on October 7, 2020.

Implementation Timeframe for Processing Prevailing Wage Determinations

• OFLC’s National Prevailing Wage Center (NPWC) has temporarily paused processing pending Form ETA-9141s for use in filing LCA and PERM applications. However, employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time.

• Beginning around 8:30AM Eastern Time on December 15, 2020, OFLC’s NPWC will resume processing all pending and new Form ETA-9141s for use in filing LCA and PERM applications, and will use the OES survey data that was in effect on October 7, 2020 for prevailing wage determinations where the OES survey data is the prevailing wage source.

Any employer that desires review of a PWD issued using the 10/8/2020-6/30/2021 wage source year data may make a request for review by the NPWC Director under 20 CFR 656.41 on or before January 4, 2021, and the Director will consider such request timely under 20 CFR 656.41(a).

Goldblum & Pollins continues to monitor developments and will update its posts with new information.

District Court Denies WashTech Bid to Toss Optional Practical Training for International Students (Nov. 30, 2020)

The Washington Alliance of Technology Workers union (WashTech) has been litigating in the U.S. District Court for the District of Columbia since 2016 against both the 2016 24-month STEM Optional Practical Training (OPT) rule and the standard 12-month post-completion OPT rule, raising many of the same substantive issues it raised in a prior, unsuccessful suit against the 2008 17-month STEM OPT rule.

In a November 30, 2020 order, the district court denied Washtech’s motions of summary judgement and granted the Department of Justice’s cross-motions for summary judgement. An opinion explaining the reasons for the court’s decision is expected in the next 60 days. Importantly, the court’s order is not a final order subject to appeal, and thus this stage of litigation is not yet ended. If the court's eventual final judgement is—as expected—consistent with the order on the motions and goes against Washtech, Washtech could file a notice of appeal within 60 days of the final judgement.