On his first day in office this Wednesday, President Biden and his Administration took swift action to reverse certain Trump Administration immigration policies such as ending the Muslim & Africa Travel Bans, stopping the construction of the southern border wall, requiring the counting of all individuals in the U.S. for the U.S. Census without regard to immigration status, directing the DHS Secretary, in consultation of the Attorney General, to preserve and fortify DACA, and enacting a regulatory freeze on the prior administration’s last-minute “midnight” regulations. Furthermore, President Biden unveiled a comprehensive immigration bill titled the “U.S. Citizenship Act of 2021” that will address three areas: providing pathway to citizenship and strengthening labor protections; prioritizing smart border controls; and addressing the route cause of migration. An outline of the proposed bill may be found here. With the Day One executive actions and legislative proposal, the Biden Administration has demonstrated its commitment to immigration reform and willingness to reverse the adverse immigration policies of the Trump era.
We had previously reported that the outgoing Trump Administration had pushed through a significant rule that may potentially impact the upcoming H-1B-cap season for FY2022. Published on January 8th, if implemented, the rule would replace the current random selection process for the H-1B cap with a system that selects individuals based on the highest wages first. The rule was supposed to take effect on March 8th. However, the rule is subject to the regulatory freeze, and if allowed to be implemented, the rule would take effect on March 21st, following the 60-day regulatory freeze period. It is now an unknown as to whether the wage registration rule will impact this year’s FY 2022 cap registration process – given the additional delay, it looks less likely. Furthermore, if the rule is challenged through the courts, which appears to be likely, it could further delay the implementation of the rule. However, in publishing the final rule, USCIS did confirm that the possibility exists that by modifying the H-1B registration portal to allow for a wage based “lottery” it may not be available to conduct a registration process this year, in which case we would revert to filing complete petitions with USCIS April 1st through April 7th. This possibility is obviously also hard to assess at this time. We are now left with the possibility that we will see a wage-based registration “lottery,” a registration-based lottery, or a filing-based lottery. As a firm we are preparing for any eventuality and will update everyone on the final outcome as the way forward becomes clearer.
On the other hand, the freeze has little if any impact on the DOL’s January 14th final rule significantly increasing the prevailing wage requirements for the E-3, H-1B, H-1B1, and PERM programs as it only pushes it back six days. Additionally, because the rule has a phased-in process that leaves the current wage levels in place until July 1, even if the effective date is delayed by six days, it does not change when the new wage levels take effect.
The freeze also impacts other regulations that were in process – as the President ordered that registrations in process be withdrawn and not published in the Federal Register. This will successfully stop a second last minute attempt to further limit the scope of the H-1B program and ensure we continue with the status quo on adjudicative standards.
A possible complication in all of this is the appointment of Ali Mayorkas the incoming Secretary for the Department of Homeland Security. Senator Josh Hawley has publicly stalled his nomination as he claims to seek answers from nominee Mayorkas related to border security and the border wall. Delaying his appointment delays the installation of Mayorkas and his anticipated team and in turn delays consideration of the way forward for these pending pieces of regulation. So, while we look forward to clarity from DHS/USCIS, we do expect it may be a month or more before we have an announcement on their position.
Our firm will continue to provide updates regarding the Biden Administration’s efforts to reform the US immigration system. In the event that the Biden Administration rescinds or affirms either the January 8th or January 14th final rules, or if either are enjoined by court action, we will promptly notify our clients. If you are a corporate client interested in being involved in litigation efforts, please contact the firm.
On Tuesday, January 26, 2021, the U.S. Centers for Disease Control and Prevention’s (“CDC”), January 12th order requiring all international air passengers destined for the U.S. to be COVID-19 tested no more than three days before their U.S.-bound flight departs and present a negative viral test result or a recent positive viral test and a letter from a healthcare provider or public health official that the individual is cleared to travel will become effective. A viral COVID-19 test includes a nucleic acid amplification test or a viral antigen test. The order applies to all air passengers traveling to the U.S. that are over the age of two (2), including U.S. citizens, Lawful Permanent Residents (“LPR”), and nonimmigrants.
The order will remain in effect until the (1) expiration of the Secretary of Health and Human Services’ declaration that the COVID-19 constitutes a public health emergency; (2) the CDC Director rescinds or modifies the order; or (3) December 31, 2021.
Please contact a member of our team if you have any questions regarding the CDC’s order.
It is that time of year again, when companies look to support existing employees and new hires in their application for H-1B. We have seen unprecedented changes in business immigration in the last few years, and there is a strong likelihood of additional changes coming soon – including the Fairness for High Skilled Immigrants Act – all of which suggest maintaining stable non-immigrant status is an important part of any company’s immigration strategy. Join Managing Partner, David Zaritzky Brown, as he walks through what to expect for this upcoming H-1B Cap season and how our firm will process applications. A must attend for HR and employees who are going through the process.
Additionally, David will spend a few minutes providing key immigration updates related to Trump’s last ditch maneuvers and Biden’s recent and likely immigration initiatives post inauguration. The core program will be a quick 30 minutes and leave ample time for Q&A.
If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **