DOL Further Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels

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As noted by NAFSA, on January 14, 2021, the Department of Labor (“DOL”) under the Trump administration published the final rule “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” This was a response to federal courts having set aside the October 8, 2020 interim final rule with the same name.  

This final rule will change how DOL computes Level I through Level IV wage rates when it uses Occupational Employment and Wage Statistics (OEWS) wage date to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify an LCA that relies on OES wage data. This would raise the prevailing wage determinations in each OEWS-based wage level. 

The implementation of this rule was delayed on March 12, 2021, and has recently been delayed again. On May 12, 2021, DOL published a final rule stating that the effective date would be further delayed until November 14, 2022, and the corresponding phased transitions dates have been delayed until January 1, 2023, January 1, 2023, January 1, 2025, and January 1, 2026, respectively. 

(Link to Department of Labor final rule: https://www.aila.org/infonet/dol-further-delay-of-effective-date-of-final-rule) 

Final Rule Implementing Vacatur of Interim Final Rule Which Revised Definition of Specialty Occupation

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In good news for high-skilled foreign workers who would like to apply for H-1B visas in the future, a final rule was published on May 19, 2021, removing the interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program” after it had been vacated by a federal district court.  

This interim final rule was issued under the Trump administration without a notice and comment period and would have had an incredibly negative impact on the H-1B process. Specifically, this rule would have overhauled the H-1B visa program by requiring employers to pay H-1B workers much higher wages, tightening the restrictions on the types of degrees that could qualify an applicant, and shortening the length of the visa for certain types of workers. According to a senior official in the Department of Homeland Security (“DHS”) at the time, this change would have meant the rejection of about one-third of H-1B applications. 

However, on December 1, 2020, in Chamber of Commerce, et al., v. DHS et al., the US District Court for the Northern District of California court found that the defendants had failed to show that there was good cause to avoid the Administrative Procedure’s Act’s notice and comment requirements. Consequently, the court set aside the DHS interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program.” Based on this ruling, the Biden administration recently published a final rule restoring the regulatory text relating to the definition of a H-1B visas to appear as it did before the publication of the interim final rule. 

International Entrepreneur Parole

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For many years, entrepreneurs have had to try to piece together pathways within the US immigration system to support them and the companies they have been trying to build. However, it has been difficult because there hasn’t been an obvious solution for these individuals.  

In an effort to begin to rectify this situation, the Obama administration issued a regulation establishing the International Entrepreneur Rule towards the end of the former President’s time in office. Unfortunately, under the Trump administration this rule came under attack. The rule’s implementation was delayed, there were lawsuits challenging this delay that ultimately overcame it, but then the Trump administration issued a proposed regulation to eliminate the program. 

After these many twists and turns, there is finally good news for startup founders. On May 10, 2021, the Biden administration announced that it is reviving the rule. They have withdrawn the Trump administration’s proposed rescission of the International Entrepreneur Rule and are welcoming applications for the program. This is good news for innovators, makers and founders, and very good news for the US economy, as well. 

For more information, please visit the USCIS website about the program: https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole. If you are an entrepreneur and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C.  (info@iandoli.com) to schedule a consultation.  

 

USCIS Issues Policy Guidance Extending EAD Validity for Certain Adjustment of Status Applicants from 1 Year to 2 Years

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On June 9, 2021, USCIS issued a policy alert increasing the validity period of initial and renewal Employment Authorization Documents (“EADs”) for certain adjustment of status applicants from one year to two years. As the average processing time for adjustment of status applications is close to or greater than one year at the moment, this will be helpful to many individuals with pending adjustment applications.  

Please note that this change does not affect replacement EADs. Replacement EADs will be issued with same validity dates as appeared on the originally issued document.  

This policy guidance is effective immediately. 

(Link to USCIS policy memo: https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf) 

SCOTUS Holds Grant of Temporary Protected Status Does Not Constitute an Admission for the Purposes of Adjustment of Status

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On June 7, 2021, the Supreme Court of the United States (SCOTUS) issued a unanimous ruling in Sanchez v. Mayorkas deciding a circuit split regarding whether or not a grant of Temporary Protected Status (TPS) constitutes a lawful admission into the US for the purposes of adjustment of status. They have held that it does not. This decision is a disappointment to thousands of individuals who have been beneficiaries of TPS - people who fled natural disasters or armed conflict in their home countries and have since lived in, worked in, and contributed to this country for years. Had the court ruled in the opposite manner, this would have provided a smoother pathway to obtaining a green card as it would have removed one large barrier in the process. Though there are still other ways to become a permanent resident if a person has TPS, many of these individuals will not be able to do so because they “entered without inspection” and were not “inspected and admitted” by an immigration officer when they first entered the US. 

If you are a TPS holder and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C.  (info@iandoli.com) to schedule a consultation.  

ICE Extends I-9 Compliance Flexibility

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On May 26, 2021, US Immigration and Customs Enforcement (“ICE”) announced that due to continued precautions related to the pandemic, the US Department of Homeland Security (“DHS”) would extend the policy of flexibility related to Form I-9 compliance that began in March 2020. The policy has been further extended from June 1, 2021, until August 31, 2021. 

This extension has guidance for employees hired on or after June 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. 

(Link to USCIS announcement: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/temporary-policies-related-to-covid-19) 

(Link to ICE announcement: https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-0) 

 

USCIS Suspends Biometrics Requirement for Certain I-539 Applicants

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In a declaration that was submitted by Acting Associate Director of Service Center Operations Connie Nolan in the Edakunni v. Mayorkas litigation (a class-action lawsuit filed by AILA and Wasden Banias to challenging H-4 and L-2 adjudication delays), USCIS stated that beginning on May 17, 2021, it would be implementing a new policy suspending the biometrics requirements for H-4, L-2, and E-1, E-2, and E-3 nonimmigrants.  

This new policy applies to the previously mentioned nonimmigrant categories if their Form I-539 was pending on May 17, 2021, and they haven’t received a biometrics notice yet, and 2) to any new I-539 applications received by USCIS between May 17, 2021 and May 23, 2022. This policy will be in place for 2 years and should automatically expire after May 17, 2023, but may be extended or revoked by the USCIS Director. Applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. However, USCIS will not refund any biometrics payments already made. 

(Credit to: Practice Alert: USCIS to Suspend Biometrics Requirement for Certain I-539 Applicants Beginning May 17, 2021) 

US Citizens Able to Return to US on Expired Passports

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US Customs and Border Protection and the US Department of State have announced that as of May 21, 2021, US citizens with expired passports may use those expired passports to return to the US through December 31, 2021.  

To do this, they have to meet certain requirements: 1) the person must be a US citizen who is currently abroad and trying to return to the US; 2) their flight back to the US must be direct or with only a connecting flight through a foreign country; 3) the expired passport must have expired on or after January 1, 2020, and must have originally been valid for 10 years (unless the person was 15 years old or younger when it was issued); and finally 4) the person must have the expired and undamaged passport in their possession. 

(CBP announcement link: https://www.cbp.gov/document/bulletins/travel-us-citizens-expired-passports) 

(Department of State announcement link: https://www.state.gov/return-travel-on-recently-expired-u-s-passports/) 

National Interest Exemption Updates

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The Secretary of State has determined that the entry of the following travelers is in the national interest for purposes of exceptions to all four proclamations. The Secretary may revise these national interest determinations as circumstances warrant. 

  • immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel); 

  • fiancé(e)s of U.S. citizens and their dependents (K visas); 

  • certain exchange visitors as detailed within this article; 

  • students (F, M, and certain J visas) as described here.  New or returning students present in China, Brazil, Iran, South Africa, or India may arrive  no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT); 

  • academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories); 

  • journalists (I visas); 

  • travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains, as outlined at https://www.cisa.gov/critical-infrastructure-sectors; 

  • travelers providing vital support or executive direction for significant economic activity in the United States 

  • pilots and aircrew traveling for training or aircraft pickup, delivery, or maintenance; 

  • those whose purpose of travel falls within one of these categories: 

  • lifesaving medical treatment for the principal applicant and accompanying close family members; 

  • public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research); 

  • humanitarian travel, to include those providing care for a U.S. citizen, lawful permanent resident, or other nonimmigrant-in-lawful-status close family member; 

  • medical escorts, legal guardians, or other escorts required by an airline or legally required by a foreign medical or law enforcement entity accompanying a U.S. citizen being repatriated to the United States; 

  • national security; and 

  • derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive a National Interest Exception (NIE), or is not otherwise subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more. 

The Department of State recommends that any individuals who are present in the 33 affected countries who do not fall under any of the categories currently listed check the website of the closest US embassy or consulate to find instructions on how to apply for an individual NIE.  

 

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/covid-19-travel-restrictions-and-exceptions.html 

Please consult your embassy for specific information and procedures if you need to apply for an NIE.   

If you are in need of travel to the U.S. from one of the countries listed above and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C.  (info@iandoli.com) to schedule a consultation.   

Travel Bans Updates

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There are now four presidential proclamations suspending entry into the US of noncitizens who were physically present in any of the 33 countries listed in the proclamations during the 14-day period immediately preceding their entry into the US.  

They are: 

  • Presidential Proclamation 9984 (China); 

 

  • Presidential Proclamation 9992 (Iran); 

 

  • Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa);  

 

and, most recently added; 

 

  • Presidential Proclamation 10199 (India); 

 

The exceptions to these proclamations, notably include (but are not limited to): 

  • US citizens; 

  • Lawful permanent residents; 

  • Spouses and children of US citizens or lawful permanent residents; 

  • Parents or legal guardians of a US citizen or lawful permanent resident unmarried minor child; 

  • Siblings of a US citizen or lawful permanent resident child (as long as both are unmarried and under the age of 21); 

  • Travelers for the purpose of the containment or mitigation of COVID-19; and 

  • Those whose entry would be in the national interest.