Apple agrees to $25 million settlement with Department of Justice over discriminatory employment practices
The Justice Department announced that it reached a settlement agreement with Apple Inc. to resolve accusations of unlawful discrimination in hiring and recruitment against both U.S. citizens and specific non-U.S. citizens during the PERM recruitment process. Apple is required to pay up to $25 million in backpay and civil penalties, marking the highest sum recovered by the department under the anti-discrimination provision of the Immigration and Nationality Act (INA).
The department asserts that Apple engaged in citizenship status discrimination in recruitment for positions it hired through the PERM process, and that the company’s unlawful discrimination prejudiced U.S. citizens, U.S. nationals, lawful permanent residents, and those granted asylum or refugee status. Specifically, the department took issue with certain advertising and recruiting procedures for PERM positions that diverged from standard company policies.
Apple will be required to conduct more expansive recruitment for future PERM applications and be subject to a three-year period of monitoring by the department.
USCIS Proposed Rule to Amend H-1B Regulations
On October 23, 2023, U.S. Citizenship and Immigration Services issued a Notice of Proposed Rulemaking to amend the H-1B regulations. The proposed rule would implement changes to the H-1B visa program, including how USCIS conducts the H-1B registration selection process, criteria for a specialty occupation position, and cap-exempt employers. Public comments are due by December 22, 2023. Iandoli, Desai & Cronin will provide additional information after the updated regulations have been finalized.
Special Student Relief Resource
Special Student Relief (SSR) suspends certain regulatory requirements for F-1 students from countries that are experiencing severe economic hardship as a direct result of humanitarian crises, natural disasters, armed conflict and other emergent circumstances. A U.S. Department of Homeland Security (DHS) declaration of SSR suspends restrictions related to on- and off-campus employment and alters the full course of study requirements for eligible F-1 students by permitting a reduced course load. For additional information about SSR, please refer to the Study in the States Special Student Relief page and What is Special Student Relief (SSR) infographic.
SSR is currently available to eligible F-1 students from the countries listed below. Please refer to the SSR Frequently Asked Questions page for additional information. A list of active SSR notices can be viewed on the What’s New page on ICE.gov/SEVP.
Afghanistan (effective until May 20, 2025)
Burma (Myanmar) (effective until May 25, 2024)
Cameroon (effective until June 7, 2025)
Ethiopia (effective until June 12, 2024)
Haiti (effective until August 3, 2024)
Hong Kong (effective until February 5, 2025)
Somalia (effective until September 17, 2024)
South Sudan (effective until May 3, 2025)
Sudan (effective until April 19, 2025)
Syria (April 1, 2024)
Ukraine (April 19, 2025)
Yemen (September 3, 2024)
USCIS issues guidance on foreign residence requirements for Exchange Visitors
On October 24, 2023, U.S. Citizenship and Immigration Services (USCIS) published updated guidance that is effective immediately to clarify how USCIS determines whether a foreign national has satisfied the two-year home residency requirement as a J-1 Exchange Visitor. Participants in the J-1 visa program who have a two-year home residency requirement must either apply for a waiver or return to their country of last permanent residence for an aggregate of two years before being eligible for certain immigration benefits, including a green card, H-1B, L-1, or K-1 visas.
USCIS will assess whether an exchange visitor has met the two-year home residency requirement by a “preponderance of the evidence” standard. USCIS also clarified that it will count a fraction of one day in the country of nationality or last residence towards the two-year home residency requirement. Situations in which it is impossible for an exchange visitor to return to their country of nationality or last legal residence will be decided on a case-by-case basis in consultation with the Department of State. USCIS also provides clarification on the exceptions to the requirement that a foreign medical graduate obtain a contract from a healthcare facility in a medically underserved area when seeking a waiver of the two-year home residency requirement.
November 2023 Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
In November, there was almost no movement in the employment-based preference categories. The EB-1 preference category on the Final Action Chart remains current for all countries other than China and India. The EB-1 priority date for China is now February 15, 2022, and for India it has remained January 1, 2017. The priority date for the EB-4 category as well as for Certain Religious Workers is now March 1, 2019.
Though U.S. Citizenship and Immigration Services (USCIS) determined that Chart B (Dates for Filing Employment-Based Visa Applications) could be used in November, unfortunately both the EB-2 and EB-3 preference categories remain backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority dates become “current.”
The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.
Link:
US Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
October 2023 Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
In October, the EB-1 preference category on the Final Action Chart is current for all countries other than China and India. The EB-1 priority date for China has remained February 1, 2022, and for India has advanced to January 1, 2017.
Though U.S. Citizenship and Immigration Services (USCIS) determined that Chart B (Dates for Filing Employment-Based Visa Applications) could be used in October, unfortunately both the EB-2 and EB-3 preference categories remains backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority dates become “current.”
The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.
Link:
US Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Boston-based startup, InSpring, to work with Massachusetts General Brigham’s (MGB) Institute of Health Professions (IHP) to address nursing shortage
A new startup in Boston by the name of InSpring is turning to international students to help address nursing vacancies at Massachusetts hospitals. These nursing vacancies are part of a larger national trend of shortages in nursing staff at hospitals. According to Axios Boston, the rate of vacancies in nursing positions in Massachusetts hospitals more than doubled during the past few years, from 6.4 percent in 2019 to 13.5 percent in 2022, and insufficient staff is leading to delays in care for patients.
InSpring will admit 20–30 international students into the first cohort, which will enter an accelerated bachelor of nursing program at the MGH Institute of Health Professions, Mass General Brigham's graduate school. According to the startup's CEO and cofounder, "What we know now is that international students not only can do the work and want to do the work, they're historically underutilized.”
InSpring will help place recruits in nursing jobs across the US and assist them with filing applications to satisfy immigration laws. The inaugural cohort will aim to take the nursing licensing exam in early 2025, though they will be able to work as a nursing assistant or in other roles before securing their license.
Link:
Department of Labor Updates O*NET Database
The Department of Labor, Employment and Training Administration released the O*NET 28.0 Database and updated its site on September 5, 2023, making updates to 90 occupation codes. Among these updates were revisions to occupation descriptions (including tasks, skills, work activities, etc.); minimum requirements for training, work experience, and education; job zones; and alternate job titles. Significantly, the occupation code 15-1211, Computer Systems Analysts was downgraded from Job Zone Four: Considerable Preparation Needed, to Job Zone Three: Medium Preparation Needed. As a result of this change, practitioners should expect a higher risk for PERM business necessity audits and H-1B specialty occupation requests for additional evidence for positions classified under the Computer Systems Analysts occupation.
The next O*NET update is expected in November 2023.
Links:
O*NET Website: https://www.onetcenter.org/database.html#overview
USCIS Clarifies Guidance for EB-1 Eligibility Criteria
On September 12, 2023, US Citizenship and Immigration Services (USCIS) issued policy guidance in the Policy Manual clarifying the types of evidence USCIS may evaluate to determine eligibility for extraordinary ability (EB-1A) and outstanding professor or researcher (EB-1B) immigrant visa classifications.
The updated adds clarifying guidance and provides examples of evidence that may satisfy the evidentiary criteria or qualify as comparable evidence, along with considerations for evaluating such evidence, with a focus on science, technology, engineering, or mathematics (STEM) fields. The new guidance is meant to provide more clarity and transparency and should assist petitioners in submitting appropriate evidence to establish eligibility for the category.
Links:
USCIS Policy Manual: https://www.uscis.gov/policy-manual/volume-6-part-f
Reminder: U.S. Citizenship and Immigration Services has Published Revised Form I-9
USCIS published a revised version of Form I-9, Employment Eligibility Verification on August 1, 2023. Among the improvements to the form is a checkbox E-Verify employers can use to indicate remote examination of identity and employment authorization documents. Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities were required to complete an in-person examination by August 30, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023.
Link:
USCIS I-9 Website: https://www.uscis.gov/i-9