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Judge orders DHS to fully reinstate DACA

Posted December 7, 2020Maria Cabrales - Law ClerkArticles

 

A Federal judge has ordered the Department of Homeland Security (DHS) to accept first-time requests for DACA applicants, DACA renewal applications, and advance parole applications. This order also requires the extension of employment authorization documents (EADs) from one year to two years.

This order comes from litigation regarding the most recent USCIS memorandum which curtailed the DACA program. The memorandum barred new first-time applications for DACA, and also required EADs to be issued in one year increments instead of two years, and barred DACA beneficiaries from applying for advance parole.

For questions about DACA eligibility or benefits please contact your Meltzer Hellrung attorney or reach out to us at consultation@meltzerhellrung.com

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Business Immigration Changes Employers Can Expect Under Biden

Posted December 7, 2020Articles

Meltzer Hellrung has produced this thought piece as a pdf that can be shared as well.

The Trump Administration has used its time in the White House to effect sweeping changes to the U.S. Immigration system that limit employment, family and asylum immigration.  Through executive orders, policy memoranda, and regulations, the Trump Administration implemented travel bans, extreme vetting, new H-1B visa policy and rules, increased Immigration and Customs Enforcement (ICE) worksite visits, changes to F-1 student status and work authorization, as well as the public charge rule that allows the denial of non-immigrant visas and green cards to individuals who legally use certain public benefits. 

With a Biden-Harris Administration to start on January 20th, employers can expect the transition to bring some relief on the business immigration front.  While some of the changes implemented over the last four years cannot be undone immediately, a Biden-Harris Administration is expected to bring policy changes and regulatory efforts within the first 100 days in office that will restore prior immigration policies and progress other immigration reform agenda items. 

  1. Changes Expected in First 100 Days

 Rescission of Travel Ban Proclamations

Executive Orders are easily overturned by a sitting U.S. President by issuing another executive order to that effect.  The Trump Administration has issued many executive orders limiting entry to the U.S for certain categories of travelers.  The Biden-Harris Administration has vowed to rescind the first travel ban limiting entry of individuals from certain majority-Muslim countries, within the first 100 days in office.

The COVID pandemic has been impetus for additional travel restrictions. The Trump Administration has also issued proclamations that suspend the entry of certain immigrants and employment-based nonimmigrants, with the stated purpose of preserving employment opportunities for U.S, citizens, and lasting through at least December 31, 2020. While the Biden-Harris Administration has not specifically addressed overturning COVID-related executive orders, we expect COVID travel restrictions to be re-evaluated and adjusted based on current scientific and economic guidance. 

Reforms to the H-1B Visa Program

In October, USCIS and the Department of Labor released regulations that change the H-1B visa rules and prevailing wage requirements employers must pay to H-1B employees.  On December 1st, the U.S District Court of the Northern District of California set aside the H-1B and Prevailing wage rules, which means prevailing wages should be returned to prior levels and the H-1B rule should be vacated.   

While the Biden-Harris Administration has indicated a plan to reform the H-1B visa program, specific details on what these reforms will look like have not been provided.  The Biden-Harris Administration has indicated a plan to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and do not undermine U.S. worker wages.  The new administration has also indicated support for expanding the number of H-1B visas available annually.

  1. Changes Expected in First 18-24 months

Reverse the Public Charge Rule

The Department of Homeland Security (DHS), under the Trump Administration, published a new rule that expands the definition of “public charge” to include individuals that legally use public benefits like food assistance, Medicaid and Section 8 housing vouchers. The new “public charge” rule has been contested through litigation but remains in effect. The Biden-Harris Administration has vowed to reverse it.

 Replace Buy American, Hire American Policy

In April 2017, Trump signed an executive order termed “Buy American, Hire American,” which guided federal agencies, including the Department of Homeland Security (DHS) through USCIS and the Department of State, to focus on protecting U.S. workers and U.S. resources.  The executive order called for a shift in policy, specifically related to the H-1B visa program, resulting in USCIS implementing policies that doubled requests for evidence and increased denials. The Buy American, Hire American Executive Order also impacted Customs and Border Protection (CBP) practices, restricting the ability of Canadian nationals to renew L-1 status at a port of entry, despite regulations that specifically permit this practice.

New appointments to leadership positions at USCIS, issuance of updated policy memorandum and re-training of officers at USCIS, CPB and ICE would return immigration review to Obama-era policies and practice.  Biden’s intention to appoint Alejandro Mayorkas, the former director of USCIS and deputy secretary of DHS that led the implementation of DACA, as the next secretary of the Department of Homeland Security, is a strong indication of an intention to undo the Trump Administration’s immigration policies.  These policy shifts are likely to have the most noticeable impact on employment immigration, making it less costly and more efficient for employers. 

Preserve H-4 EAD, Diversity Lottery, and DACA Programs Slated for Rescission

As the H-4 EAD and DACA programs are remnants of the Obama-Biden, it can be expected that a Biden-Harris Administration will carry these benefits forward and perhaps expand the programs. 

President-elect Biden has stated that he will prioritize legislative efforts to create a clear path to legalization and citizenship for Dreamers within the first 100 days of his presidency. 

  1. Long Term Changes

Increase Employment-Based Green Card Caps

Currently, the number of employment-based green cards is capped at 140,000 each year. This cap has created backlogs that require individuals, especially those born in India and China, with approved green card applications to wait 2 to 10 or more years to adjust their status to permanent residents.  A Trump Administration policy requiring interviews for employment-based green card applicants has further delayed immigrant visa processing times. 

President-elect Biden’s immigration plan includes a promise to work with Congress to increase the number of visas awarded for permanent, employment-based immigration. He has also indicated a plan to exempt from any cap recent graduates of PhD programs in STEM fields in the US.

Promote the Retention of STEM F-1 Students

The Trump Administration has launched repeated attacks on the F-1 student visa. Most recently the DHS proposed a rule to eliminate duration of status (D/S) for F students and their dependents. The Trump Administration has also suggested implementing a policy that would limit the three years of Optional Practical Training work authorization currently available to F-1 students graduating in STEM (Science, Technology, Engineering, Mathematics) fields of study.

A rule to eliminate the H-1B lottery and replace it with a highest-to-lowest salary system, currently in a notice and comment period, is likely to further shut international students out from pursuing employment opportunities in the US after their studies.

These policies, along with the COVID-19 pandemic, resulted in a 43% decrease in international student enrollment in Fall 2020 according to a survey conducted by the Institute of International Education.  A Biden-Harris Administration has indicated support for a wage-based H-1B visa allocation system, but will have to decide how to deal with the other rules in the works that deter F-1 international student retention.

Shift Away from Anti-Immigrant Messaging

The Biden-Harris Administration has promised a more welcoming message to immigrants and a return to foundational principles that foreign nationals contribute to the growth and development of the U.S. economy. Employers can expect a Biden-Harris administration to shift the pendulum on business immigration back to pre-Trump policies.  Although many of these changes may be seen in the early days of a new administration, other changes will take hard work and legislative effort to reverse.  We will be closely following policy updates enacted by the Biden-Harris Administration in 2021 and providing insight on the impact of changes.

For additional information, please see our collateral on the topic. Should you have any questions, please reach out to your Meltzer Hellrung attorney. 

 

 

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Department of Labor Announces Timeline for Updated Wage Data

Posted December 7, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

The Department of Labor has issued a timeline to implement previously available wage data. In light of the District Court decision setting aside the regulation that took effect on October  7th, the DOL will implement wage data according the rules historically applicable.

  • Employers may file Labor Condition Applications (LCAs) after 8:30AM on Wednesday, December 9, 2020 using the wage data in place prior to October 7th.
  • LCAs using other wage sources can be filed after 8:30AM on Friday, December 4, 2020.
  • Employers can continue to file prevailing wage requests.
  • DOL has paused the processing of prevailing wage requests until 8:30AM on December 15, 2020.
  • For those prevailing wage determinations issued using the higher wage data, employers may seek a redetermination between now and January 4, 2021, despite the usual 30-day deadline.

Please reach out to your designated Meltzer Hellrung attorney, or consultation@meltzerhellrung.com with any questions. 

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USCIS Extends I-9 Verification with EAD Approval Notices Due to Card Production Delays

Posted December 2, 2020Stephanie Wedel - Sr. AssociateArticles

Due to the delay in the printing of Employment Authorization Documents (EAD), USCIS is permitting the use of the I-797, Notice of Action (Approval Notice) for I-9 verification purposes.  USCIS announced on August 19, 2020, that approval notices for Form I-765 with a Notice Date on or after December 1, 2019 through and including August 20, 2020 can be used as a List C #7 document that establishes employment authorization issued by the Department of Homeland Security, even though the notice states it is not evidence of employment authorization.  Employees may present their Form I-797 Approval Notice as a List C document until February 1, 2021, whereas originally the accommodation was only permitted until December 1, 2020.

For I-9 compliance, employees who present the Form I-797 approval notice, must also present an acceptable List B document establishing their identity. A list of acceptable documents can be found on the Form I-9.

By February 1, 2021, employers must re-verify employees who used the Form I-797 Approval Notice for the List C document. These employees must present new evidence of employment authorization from either List A or List C. 

We recommend employers to accept new EADs from employees as soon as they receive them from USCIS prior to February 1, 2021 to ensure I-9 compliance.  It is the employee’s choice whether to present the new EAD card or a different document from either List A or List C.

If you have any questions or would like to organize an I-9 audit to ensure your company’s compliance, please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.

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Federal Court Stops New H-1B and Prevailing Wage Rules

Posted December 1, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

On December 1st, the U.S. District Court of the Northern District of California issued a judgement setting aside the H-1B and Prevailing Wage rules that were issued in October. The District Court found that the Administration had violated the Administrative Procedure Act by not demonstrating that there was good cause to issue the regulations without following the normally required notice and comment requirements. Due to this violation, the regulations have been overturned.

What does this mean?

H-1B Rule

The H-1B rule was expected to go into effect December 7th.  With this District Court decision, this rule will no longer be taking effect next week.  This rule would have had a substantial impact on IT consulting companies, as off-site H-1B approvals would have been limited to a single year of validity. With the judgment, H-1B regulations and requirements will remain the same, without change.

Prevailing Wage Rule

As the District Court found that there was no reason to delay the issuance of the summary judgment, we expect the prevailing wage data to return to the levels that were in place prior to October 7 relatively quickly.

Skill Level

Previous Percentile

New Percentile on Oct. 7th

Level 1 (entry level)

17

45

Level 2 (qualified)

34

62

Level 3 (experienced)

50

78

Level 4 (fully competent)

67

95

With the return to the previous wage guidelines, employers will have more reliable wage data available from DOL. Under the new rules the DOL presented data in many occupations having a default wage level of $208,000, as well as unreasonable increases in the required prevailing wages.

Labor Condition Applications (LCA) filed prior to the summary junction will continue to be valid, and pending prevailing wage determinations should now be issued with the pre-October 7 wages.  At this time, it is unclear whether DOL will reissue prevailing wage determinations that were created between October 8 and December 1.

What could happen next?

The Administration will be sure to appeal this decision to the 9th Circuit. An appellate court could temporarily pause the implementation of this decision or even overturn the decision.

Meltzer Hellrung will continue to monitor this matter and provide updates as available.  Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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