Immigration Update: November 2020

The U.S. Chamber of Commerce, the National Association of Manufacturers, numerous universities and other groups are challenging two new immigration regulations that were promulgated on a fast track by the Departments of Labor (DOL) and Homeland Security (DHS), asserting that (i) DOL and DHS did not properly follow federal procedure when they published the regulations without providing advance notice or an opportunity for the public to provide feedback, (ii) the rules are arbitrary and capricious and that the DOL rule improperly relied on incorrect data and faulty reasoning to justify the changes made to the prevailing wage structure. 

The plaintiffs in each case are seeking temporary injunctive relief to block enforcement of the rules while litigation goes forward.

Several provisions of the new regulation introduces stricter eligibility criteria for H-1B specialty occupations, places new restrictions on the placement of H-1B workers at third-party worksites, and reinstates evidentiary policies that had been rescinded earlier. (Chamber of Commerce et al. v. DHS et al., Case No. 20-CV-7331 , Purdue, et al. v. Scalia, Case No. 1:20-CV-03006 and ITServe Alliance Inc., et al. v. Scalia, Case No. 2:20-CV-14604)

The fee increase was part of a stopgap spending measure signed into law on September 30, 2020. The  legislation also significantly expanded the premium processing program to include many other employment-based immigrant applications and petitions, though USCIS has not yet announced when it will  implement that expansion.

The State Department has released a proposal to eliminate an option available in certain limited circumstances for foreign workers to obtain a B-1 business visitor visa “in lieu of” an H-1B specialty occupation or H-3 trainee visa. An advance copy of the proposal is published in the Federal Register. The agency has provided a 60-day public comment period.

The Eighth Circuit Court of Appeals issued a decision in Velasquez v. Barr on Oct. 27, 2020, holding that a TPS recipient is deemed “inspected and admitted” for purposes of INA section 245(a) adjustment of status, even if he or she initially entered the United States without inspection. In issuing this decision, the Eighth Circuit joins the Sixth and Ninth Circuits in protecting the ability of many TPS recipients to adjust to Lawful Permanent Resident status under an independent basis, such as an immediate relative petition.

States within the jurisdiction of the Eighth Circuit include Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

USCIS released a new Form N-648, Medical Certification for Disability Exceptions, in September and became the only edition accepted by USCIS beginning on Oct. 13, 2020.

The new form is much longer and more onerous than the previous version, in line with new policy guidance on disability waivers. The number of pages increased from six to nine pages and the number of questions on the disability or impairment nearly doubled, from 12 to 23. New questions included date that each disability or impairment began; the date of diagnosis; the severity of each disability or impairment; how each disability or impairment affects the applicant’s daily life activities; which disabilities/impairments are expected to last over 12 months and why; the frequency of treatment; and other matters.