DOL Announces Further Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels
On June 23, 2021, 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, vacating the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 86 FR 3608 (January 14, 2021), and remanding the matter back to the U.S. Department of Labor (DOL). DOL published the Final Rule on January 14, 2021, following district court orders that set aside an October 8, 2020 Interim Final Rule (IFR) (85 FR 63872). The Final Rule amended the Department’s regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis under the PERM, H-1B, H-1B1, or E-3 visa programs. The final rule would have amended the federal regulations to change how DOL computed Level I through Level IV wage rates when using Occupational Employment Statistics (OES) wage data to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify a Labor Condition Application (LCA) that relies on OES wage data. This would have resulted in higher NPWC prevailing wage determinations in each OES-based wage level.
DOL has twice delayed the effective date of the Final Rule (86 FR 13995; 86 FR 26164). In light of these delays and now the June 23, 2021 court order vacating the Final Rule, DOL has announced that the operative version of the regulations will continue to be the version in place on October 7, 2020, prior to the publication of the Final Rule on October 8, 2020.
USCIS Announces It Will Allow Resubmission of Certain FY2021 H-1Bs Rejected or Closed Due to Start Date
On June 23, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that 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. USCIS is reconsidering these applications, as the agency has concluded that it is not required to reject or close these petitions based on the requested start date, according to the applicable regulations.
Applicants with FY 2021 petitions that were rejected or administratively closed solely because the petition was based on a registration submitted during the initial registration period, but the petitioner requested a start date after October 1, 2020, the previously filed petition may be resubmitted, with all applicable fees, at the address provided here. Such petitions must be resubmitted before October 1, 2021. If properly resubmitted, USCIS will consider the petition to have been filed on the original receipt date.
Withdrawal of DHS Proposal to Eliminate Duration of Status
U.S. Immigration and Customs Enforcement (ICE) originally proposed modifying the period of authorized stay for certain categories of nonimmigrants traveling to the United States by eliminating the availability of "duration of status" and by providing a maximum period of authorized stay with options for extensions for each applicable visa category. On September 25, 2020, the Department of Homeland Security (DHS) published a proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. If this rule were enacted, individuals in the F, J, and I categories would have been admitted for a fixed period of time with specific expiration dates, and all F, J, and I nonimmigrants who wish to remain in the United States beyond their specifically authorized admission period would need to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP to be admitted at a port of entry (POE).
According to the Spring 2021 Regulatory Agenda, DHS intends to withdraw this proposed rule. Nonimmigrants in F, J, and I categories will continue to be admitted into the United States for the period of time that they are complying with the terms and conditions of their nonimmigrant category (“duration of status”), rather than an admission for a fixed time period with a specific expiration date that would need to be extended with USCIS or by departing the U.S. to be admitted again by CBP.
DHS Extends US/Canada/Mexico Travel Restrictions One More Month
On June 20, 2021, the Department of Homeland Security (DHS) announced that it would be extending pandemic related travel restrictions on non-essential travel at land and ferry crossings with Canada and Mexico through 11:59 PM EST on July 21, 2021, “…while ensuring access for essential trade & travel”.
This continues the travel restrictions that went into place on March 21, 2020, when the U.S., Mexico, and Canada temporarily restricted non-essential travel across the US-Canada land borders. “Essential travel” includes cross-border activities with Canada and Mexico that support health security, trade, commerce, supply security, and other essential activities.
COVID-19 Travel Restrictions and Exceptions as of June 24, 2021
The State Department has continued to announce updates to the current travel restrictions and any exceptions to these restrictions. There are four presidential proclamations that suspend entry into the United States of all noncitizens who were physically present in any of 33 countries listed here during the 14-day period preceding their entry or attempted entry into the United States. They are Presidential Proclamation 9984 (China); Presidential Proclamation 9992 (Iran); Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa); and Presidential Proclamation 10199 (India).
The Proclamations do not apply to:
U.S. citizens;
lawful permanent residents;
spouses and minor children of U.S. citizens or lawful permanent residents;
parents or legal guardians of a U.S. citizen or lawful permanent resident unmarried minor child;
siblings of a U.S. citizen or lawful permanent resident child, provided both are unmarried and under the age of 21;
air and sea crewmembers;
U.S. noncitizen nationals (not applicable to Proclamations 9984 (China) and 9992(Iran));
diplomats;
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;
certain U.S. Government invitees for the purpose of the containment or mitigation of COVID-19; and;
certain travelers whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
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.
These three categories of travelers are automatically considered for National Interest Exception (NIE) at the Port of Entry and do not require advance approval of a NIE from an embassy or consulate:
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);
Students (F and M 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);
The following categories of travelers may apply for a National Interest Exception (NIE) if subject to one or more of the four proclamations. Travelers who believe their travel is within one of the below categories should consult the website of the nearest embassy or consulate for instructions on applying for an NIE.
certain exchange visitors as detailed within this article;
exchange students and academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories);
new or returning students and academics 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;
Educational Commission for Foreign Medical Graduates (ECFMG) J visa program participants;
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.
Temporary workers present in South Africa whose travel is essential to food supply chain (H-2A and certain H-2B visas) are excepted travelers as described in this article.
Travelers present in these 33 countries who believe they have an urgent need for travel to the United States that does not fall under any of the categories described above should consult the website of the nearest embassy or consulate for instructions on applying for an individual NIE.
If the embassy or consulate supports the granting of an individual NIE in a particular case, they will forward their recommendation to the Department of State for consideration.
USCIS Extends Flexibility for Responding to Agency Requests
In response to the ongoing coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services (USCIS) has announced it is extending the flexibilities it announced on March 30, 2020, to assist applicants, petitioners and requestors who are responding to certain:
Requests for Evidence;
Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind;
Notices of Intent to Terminate regional centers; and
Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:
The form was filed up to 60 calendar days from the issuance of a USCIS decision; and
USCIS made that decision anytime from March 1, 2020, through June 30, 2021.
Notice/Request/Decision Issuance Date: This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1, 2020, and June 30, 2021, inclusive of those dates.
Response Due Date: USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, USCIS will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before they take any action.
USCIS Announces Lockbox Filing Flexibilities
U.S. Citizenship and Immigration Services (USCIS) has announced that it will continue to offer filing flexibilities to provide relief to certain applicants and petitioners impacted by delays at a USCIS lockbox. These flexibilities only apply to benefit requests submitted to a USCIS lockbox and not to USCIS service centers or field offices. The following temporary flexibilities are effective for 60 days from June 10 until Aug. 9, 2021:
If you submitted a benefit request to a USCIS lockbox between October 1, 2020, and April 1, 2021, and that request was rejected during that timeframe solely due to a filing fee payment that expired while the benefit request was awaiting processing, you may resubmit the request with a new fee payment. If USCIS concurs that it has rejected the benefit request because of the delay, USCIS will deem the request to have been received on the initial filing date it was first received and waive the $30 dishonored check fee.
USCIS will allow applicants and petitioners to submit documentation with a benefit request resubmission demonstrating that because of the time that elapsed between when a benefit request was originally submitted to a USCIS lockbox and when USCIS rejected it, an applicant, co-applicant, beneficiary or derivative has reached an age that makes them no longer eligible to file for the benefit requested. If USCIS agrees that the delayed rejection caused the person to be ineligible due to age, USCIS will accept the request and deem it to have been received on the date the initial benefit request was received. This flexibility does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
Applicants and petitioners can contact USCIS to verify previously filed benefit requests have not been rejected in error. If USCIS agrees, applicants and petitioners may be allowed to resubmit an erroneously rejected benefit request and USCIS will deem the benefit request to have been received on the date the initial benefit request was first received at a USCIS lockbox.
We’re Hiring!
We have a job opening for a paralegal position with our dynamic team. Please share this posting (Immigration Paralegal) with your networks, and please let them know that we are also accepting resumes and cover letters at: careers@iandoli.com.
Eoin Reilly Retirement Announcement
After over 30+ years with Iandoli Desai and Cronin P.C., having contributed an enormous amount to the firm’s growth and success during that time, our good friend and colleague, Eoin Reilly, will be retiring on June 18th. We’ll miss him greatly, but we’re excited for him as he embarks on this next chapter. While Eoin will retire from active practice with our firm, he plans to keep his legal skills sharp through regular pro bono work with the Rian Immigrant Center in the years to come. Eoin is also looking forward to dedicating time to traveling abroad, visiting with family and friends, studying things like film and art history, cooking, and achieving his lifelong goal of having a beer belly (such a good place to rest a beverage!). Please join us in raising a pint to thank Eoin for his untold hours of hard work, his compassion and kindness, and his wonderful sense of humor. Here’s to many good retirement memories yet to be made!
DHS Secretary Announces New 18-month TPS Designation for Haiti
After many months of uncertainty and four separate lawsuits challenging the Trump administration’s efforts to eliminate the previous designation of Haitian TPS, we are very happy to share that DHS Secretary Mayorkas has announced a new 18-month designation of TPS for individuals from Haiti.
This designation will allow Haitian nationals who are currently residing in the U.S. as of May 21, 2021, to file initial applications for TPS as long as they meet the eligibility requirements. We are still awaiting the publication of the Federal Register notice which will contain the duration dates, eligibility requirements, and application instructions.
With respect to the previous designation of Haitian TPS, court injunctions and other court rulings have allowed it to remain in effect, however, we are still awaiting the outcome of those lawsuits. Existing TPS beneficiaries retain their TPS and employment authorization through October 4, 2021. DHS will continue to extend the benefits and documents as required to comply with court orders. These beneficiaries may also apply for the new designation of Haitian TPS so as to benefit from the new 18-month designation.
For more information, please see the USCIS webpage dedicated to Haitian TPS: https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti. If you have additional questions about applying for TPS, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.