Immigration Update: January 2021

On November 23, 2020, President-Elect Joe Biden announced the selection of Alejandro Mayorkas, who was born in Havana, Cuba, to be the next Secretary for the U.S. Department of Homeland Security (“DHS”). Alejandro Mayorkas would be the first Latino and the first immigrant to become secretary of Homeland Security. The DHS oversees and manages three agencies: Customs and Border Protection, Immigration and Customs Enforcement (also known as “ICE”), and USCIS.  Many may know Secretary-Elect Mayorkas from his service as the Director of USCIS and Deputy Secretary of DHS during the Obama administration. 

Coming from an immigrant background, Secretary-Elect Mayorkas has a history at both DHS and USCIS of implementing fair and efficient immigration policies while also properly enforcing laws and securing the borders.

A U.S. district court in California, in Chamber of Commerce, et al., v. DHS, et al., Case No. 20-cv-07331-JSW, 12/1/2020, set aside both Interim Final Rules that if implemented would have undermine the H1 B program for employers by insignificantly increasing the prevailing wage and would have been devastating for high-skilled immigration under the H-1B visa program. The Court set aside these IFRs, granting the plaintiffs injunctive relief. The court found that both the Department of Labor (DOL) and United States Citizen and Immigration Services (USCIS) did not possess appropriate good cause to dispense and skip the Administrative Procedure Act’s notice-and-comment requirements before implementing the regulations. As a result of the court order, the USCIS’s IFR will no longer apply to H-1B adjudications. Moreover, the DOL’s IFR, which significantly increased the prevailing wage, will no longer be valid under the court order. The DOL will revert to the pre-IFR Occupational Employment Survey (“OES”) wage survey.

(Chamber of Commerce, et al., v. DHS, et al., Case No. 20-cv-07331-JSW, 12/1/2020, can be found at https://www.chamberlitigation.com/cases/chamber-commerce-v-us-department-homeland-security)

USCIS has released its final rule on the modification of the H-1B cap selection process (“Modification Selection Process”) to prioritize petitions with the highest wage levels in the Federal Register.

This rule will become effective on March 9, 2021 (60 days from publication), in time for this year’s H-1B Cap Registration process.

While this Modification Selection Process will continue the dual lottery system, it will prioritize the selection of cases in each lottery based on the highest wage levels for the appropriate Standard Occupational Classification (SOC) code in the area of intended employment.

The only substantive question that had to be answered as part of the electronic registration process was whether the beneficiary held a U.S. Master’s degree or higher. Now, if the rule goes into effect, the employer will have to determine and list the highest Occupational Employment Statistics (OES) prevailing wage level the proffered wage equals or exceeds for the relevant SOC code in the intended area of employment. Once a petition is selected for submission and is filed, USCIS will review the petition for possible inconsistencies.

The many concerns submitted during the original notice and comment period of the  Modification Selection Process which was originally  published in the Federal Register in November 2020. However, DHS parried such criticisms and ultimately made no changes to address whether this new rule would be ultra vires or otherwise abusive effects on universities employment.

On August 19, 2020, the USCIS announced a delay in Employment Authorization Document (“EAD”) processing and allowed use of the approval notice (Form I-797) as proof of work authorization up to December 1, 2020. Due to the continued delay of the production of approved EAD cards from USCIS, the agency extended the use of the EAD Form I-797 approval notice as proof of work authorization until February 1, 2021. For further guidance regarding how to follow the requirements to verify work authorization using the EAD Form I-797 approval notice, please go to the USCIS website.

A group of 45 foreign nationals filed a lawsuit against USCIS in the Northern District Court of California on November 3, 2020, for unreasonable delay in issuing H4 EAD renewals. H4 EAD was introduced under the Barack Obama administration in 2015 that allowed the spouses of H-1B visa holders to work. However, due to the change in the policy under the Trump Administration, biometrics were added as a condition to the Form I-539, extensions for these visa that have caused unreasonable delays resulting in 4-12 month in processing an application, which prior to these requirements would take 20-30 mins to adjudicate. Ironically, an application for renewal of status can only be filed 180 days before the immigration status expires and these significant wait times with USCIS will surely leave the applicant without status for few months, job lose that would be caused by the adjudication delays and during the pendency of the application, the applicant won’t be able to carry a health insurance unless the H1B spouse’s insurance covers them. More importantly, the applicant won’t be able to travel or leave the country, as that would be considered abandonment of application. So this would create somewhat a “house arrest” scenario, no fault of the applicant and sheer delays by the USCIS. According to the USCIS StakeHolder’s Press release on December 30, 2020 indicated that the agency has about 1.3 million pending Biometric appointments to be issued as of mid December, (which means the processing of application has not started yet causing further delays). They can only process about 10,400 per day for biometrics. With that rate, it will take about 125 days, just to clear the backlog.

Following court order from the U.S. District Court for the Eastern District of New York, effective December 7, 2020, USCIS will:

• accept first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (“DACA”) based on the terms of the DACA policy;
• accept DACA renewal requests based on the terms of the DACA policy;
• accept applications for advance parole documents;
• extend one-year grants of deferred action under DACA to two years; and
• extend one-year employment authorization documents under DACA to two years.

Additionally, according to DHS, “USCIS will take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”

DHS announced in the Federal Register on December 7, 2020, that it has extended the validity of Temporary Protected Status (“TPS”)-related documentation for beneficiaries receiving TPS from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. This notice automatically extends through October 4, 2021, the TPS-based validity of EADs; Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record from those six countries. These TPS beneficiaries are also allowed to seek new EAD work permits with an October 4, 2021, expiration date. Acting Secretary of Homeland Security Chad F. Wolf extended the Temporary Protected Status (TPS) designation for South Sudan for 18 months through May 2, 2022. DHS is doing this to follow recent court orders from the Northern District of California and the Eastern District of New York. ( Ramos et al. v. Wolf et al., No. 18-16981 (9th Cir., Sept. 14, 2020); Bhattarai et al. v. Nielsen et al., No. 19-cv-731 (N.D. Cal. March 12, 2019 ) can be found at https://www.uscis.gov/humanitarian/temporary-protected-status