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WEEKLY IMMIGRATION UPDATE 10.30.2020

22:50 30 October in News Updates
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BREAKING NEWS:  October 30, 2020

DHS to propose rule to change H-1B lottery system — On Monday the Department of Homeland Security will publish a proposed rule to eliminate the current H-1B lottery system for cap (quota-subject cases) and replace it with a system to select H-1B registrants based on those who are offered the highest salaries.  A pre-publication version of the rule is available at https://www.federalregister.gov/public-inspection/2020-24259/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions.  There is a 30-day comment period.

HEADLINES:  October 26, 2020

  1. Two More Lawsuits Challenge New DOL, DHS Rules– Two more lawsuits have been filed challenging recent interim final rules that change how prevailing wages are calculated and redefine “specialty occupation” and the employer-employee relationship for H-1B temporary visa purposes.
  2. State Dept. Proposes to Eliminate ‘B-1 in Lieu of H’ Policy Unless Nonimmigrant Otherwise Qualifies – DOS said it would no longer authorize issuance of B-1 visas for certain aliens classifiable as H-1B or H-3 nonimmigrants, commonly referred to as the “B-1 in lieu of H” policy unless the foreign national independently qualifies for a B-1 visa for a reason other than the B-1 in lieu of H policy.
  3. DHS Cracks Down on Alleged Optional Practical Training Fraud – USCIS plans to revoke or fail to renew 1,100 OPT work permits of international students, and ICE arrested 15 nonimmigrant students for claiming they were employed by nonexistent companies, among other measures.
  4. E-Verify Releases Do’s and Don’ts When Creating Cases– E-Verify released a list of “do’s and don’ts” for employers.

HEADLINES:  October 19, 2020

  1. Lawsuit Challenges New DOL Prevailing Wage Rule for H-1Bs; Other Lawsuits to Follow– A lawsuit filed by a group of technology consulting firms is challenging the Department of Labor’s interim final rule on prevailing wages for H-1B workers.
  2. USCIS Increases Premium Processing Fees– A new law requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes.
  3. Judge Rules Against DHS in Exclusion of New Yorkers From ‘Trusted Traveler’ Programs– A federal judge ruled that the Department

 

Please scroll down to view the full updates.

DETAILS

1.  Two More Lawsuits Challenge New DOL, DHS Rules

Two more lawsuits have been filed challenging recent Department of Labor (DOL) and Homeland Security (DHS) interim final rules that change how prevailing wages are calculated and redefine “specialty occupation” and the employer-employee relationship, respectively, for H-1B temporary worker purposes:

  • Purdue University et al. v. Scalia et al. argues that a DOL interim final H-1B rule was posted “unnecessarily and without regard to the disastrous consequences to the public” and was made effective less than 48 hours later without following the legal requirement for advance public notice or providing an opportunity for comment before the rule was made effective. The lawsuit states that the rule was “unlawfully and intentionally meant to upset the U.S. labor market and disrupt the way businesses operate.” The plaintiffs represent a cross-section of affected academic institutions, businesses, organizations and trade associations.
  • Chamber of Commerce et al. v. DHS et al. alleges that DHS and DOL interim final H-1B rules were promulgated without following the notice-and-comment requirements or rulemaking under the Administrative Procedure Act, also exceed the agencies’ statutory authority, and are arbitrary and capricious. U.S. Chamber CEO Thomas J. Donohue said that the rules being implemented by DHS and DOL “undermine high-skilled immigration in the U.S. and a company’s ability to retain and recruit the very best talent. If these rules are allowed to stand, they will devastate companies across various industries. The Chamber is proud to join our partners in fighting against these measures that will discourage investment, diminish economic growth, and impede job creation in the U.S.”

These lawsuits follow on the heels of a complaint filed October 16, 2020, by a group of technology consulting firms, ITServe Alliance Inc. et al. v. Scalia et al., which is challenging the DOL’s interim final rule on prevailing wages for H-1B workers. The plaintiffs seek a preliminary and permanent injunction to stop DOL from imposing the new wage rates.

 

  1. State Dept. Proposes to Eliminate ‘B-1 in Lieu of H’ Policy Unless Nonimmigrant Otherwise Qualifies

On October 21, 2020, the Department of State (DOS) proposed to amend its regulation governing nonimmigrant visas for temporary visitors for business-the B-1 nonimmigrant visa classification-by removing two sentences defining the term “business'” that DOS said “are outdated due to changes in the INA since 1952, from when the two sentences originate.” With removal of these sentences, DOS said it “would no longer authorize issuance of B-1 visas for certain aliens classifiable as H-1B or H-3 nonimmigrants, commonly referred to as the ‘B-1 in lieu of H’ policy, unless the alien independently qualifies for a B-1 visa for a reason other than the B-1 in lieu of H policy” and “bring the regulations into conformity with Department practice with respect to athletes, entertainers, and artists.”

DOS said that “[r]emoving these two sentences, and thus removing any question about whether the referenced employment or labor might be permissible B-1 activity, not only conforms the regulation to the applicable statutory framework, but also furthers the goals” of President Trump’s Executive Order 13788, Buy American and Hire American.

Comments are due by December 21, 2020.

 

  1. DHS Cracks Down on Alleged Optional Practical Training Fraud

According to reports, U.S. Citizenship and Immigration Services (USCIS) plans to revoke or fail to renew 1,100 Optional Practical Training (OPT) work permits of international students. OPT allows them to work in a field directly related to their area of study while on F-1 student visas. Of the total, USCIS is alerting 700 that it is revoking their permits, and the agency will not renew another 400 upon expiration.

The Department of Homeland Security (DHS) attributed the action to anti-fraud efforts. DHS officials noted that working in a position unrelated to the field of study can constitute fraud. There were indications that the crackdown is targeting not only international students but also participating employers and universities, such as by terminating designated school officials who approve work placements that do not meet OPT requirements.

Also, U.S. Immigration and Customs Enforcement (ICE) arrested 15 nonimmigrant students for claiming they were employed by nonexistent companies. The 15 arrests took place in and around Boston, MA; Washington, DC; Houston, TX; Ft. Lauderdale, FL; Newark, NJ; Nashville, TN; and Pittsburgh and Harrisburg, PA. Those arrested included 11 Indian nationals, two Libyan nationals, one Senegalese national, and one Bangladeshi national. ICE said it “will continue to vet students who gained new employment through OPT for compliance with their nonimmigrant status.”

There are more than 220,000 international OPT students in the United States. OPT enables nonimmigrant students to work in positions related to their field of study for up to one year, with an additional 24 months if the student graduates with a STEM (science, technology, engineering, and mathematics) degree.

 

  1. E-Verify Releases Do’s and Don’ts When Creating Cases

E-Verify released the following “do’s and don’ts” for employers:

DO’s

DON’Ts

  • Review acceptable documents from Form I-9 Lists of Acceptable Documents
  • Discriminate against workers because of their national origin, citizenship, or immigration status
  • Review an identity document with a photo if the employee presented a List B document
  • Verify employees hired before Nov. 7, 1986
  • Create a case for each newly hired employee no later than the third business day after the employee starts work for pay
  • Request specific documents from employees when they complete their Form I-9
  • Enter the employee’s email address in E-Verify if they provided one on their Form I-9
  • Create cases for employees hired before you enrolled in E-Verify*
  • Notify each employee who receives a Tentative Nonconfirmation (TNC) and give them the opportunity to contest it
  • Create duplicate cases for the same employee
  • Give employees their Further Action Notice and discuss it with them privately
  • Terminate or take adverse action against an employee because they received a TNC
  • Close cases timely
  • Share any login information, including user ID and password
  • Safeguard all personally identifiable information

 

  1. Lawsuit Challenges New DOL Prevailing Wage Rule for H-1Bs; Other Lawsuits to Follow

A lawsuit filed October 16, 2020, by a group of technology consulting firms, ITServe Alliance Inc. et al. v. Scalia et al., is challenging the Department of Labor’s (DOL) interim final rule on prevailing wages for H-1B workers. The plaintiffs argue that DOL “dramatically altered the manner in which it calculates prevailing wage rates for the H-1B program” and made the prevailing wage rates “exponentially higher” without prior notice or an opportunity to comment.

They also argue that the new wage rates are “set under a novel standard that conflicts with the governing statutory criteria” and are “arbitrary and capricious because the agency relied on outdated, incorrect, or limited empirical data, failed to consider readily available, relevant data and empirical studies, and engaged in reasoning that conflicts with basic economic theory.”

The plaintiffs seek a preliminary and permanent injunction to stop DOL from imposing the new wage rates, which they say will “upend” their businesses. Several other lawsuits challenging the DOL rule and a related rule from the Department of Homeland Security on specialty occupations and the employer-employee relationship are expected to be filed the week of October 19.

 

  1. USCIS Increases Premium Processing Fees

Effective October 19, 2020, U.S. Citizenship and Immigration Services (USCIS) is increasing fees for premium processing as required by the Emergency Stopgap USCIS Stabilization Act, which was part of the Continuing Appropriations Act signed into law on October 1. The new law requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes.

The fee for premium processing will increase from $1,440 to $2,500 for all filings except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. The premium processing fee for those petitioners is increasing from $1,440 to $1,500.

Any Form I-907, Request for Premium Processing, postmarked on or after October 19, 2020, must include the new fee amount. For filings sent by commercial courier (such as UPS, FedEx, or DHL), the postmark date is the date reflected on the courier receipt.

USCIS said the new law also gives the agency the ability to expand premium processing to additional forms and benefit requests, but it is not yet taking that action. “Any expansion of premium processing to other forms will be implemented as provided in the legislation,” USCIS said.

 

  1. Judge Rules Against DHS in Exclusion of New Yorkers From ‘Trusted Traveler’ Programs

A federal judge ruled on October 13, 2020, that the Department of Homeland Security’s (DHS) decision to suspend the eligibility of New York residents to enroll or re-enroll in the Trusted Traveler Programs (TTPs) operated by U.S. Customs and Border Protection (CBP) (the TTP decision) was unlawful. The judge also formally vacated the TTP decision to ensure that it will not be reinstated. The TTP decision resulted in the wrongful exclusion of more than 800,000 New Yorkers from TTPs, such as Global Entry.

As background, in June 2019, New York enacted the “Green Light Law” authorizing the New York State Department of Motor Vehicles to issue driver’s licenses to residents without reference to immigration status. The law also prohibited disclosure of and access to DMV records by federal immigration officials absent a court order. In response, DHS implemented the TTP decision to exclude New York residents from TTPs. New York later amended its law to permit sharing of New York DMV records as necessary for individuals seeking to enroll in TTPs. However, the judge said the case was not moot due to lingering effects and that vacating the order was needed so it could not be reinstated. Judge Jesse M. Furman also said that the exclusion of New York was arbitrary and capricious and that government officials had made things worse “by repeating their misleading, if not false, representations, in some instances under oath.”

New York Governor Andrew Cuomo said the state will seek civil damages from DHS. Among other things, Gov. Cuomo noted that congestion at airports while the coronavirus was spreading from Europe increased as a result. A spokesperson for Gov. Cuomo said the judge’s conclusion “confirms what we already knew: a radicalized Department of Homeland Security tried to extract economic pain on New Yorkers in the name of politics and then lied to the American people about it.”

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COVID-19 RESOURCES

COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

–        https://www.dhs.gov/coronavirus-news-updates

–        https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

ICE:

–        Overview and FAQs: https://www.ice.gov/coronavirus

–       Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response

CBP:

–        Updates and Announcements:   https://www.cbp.gov/newsroom/coronavirus

–        Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

–        OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/

–        COVID-19 FAQs:

State Department: https://www.state.gov/coronavirus/

Justice Department

AGENCY TWITTER ACCOUNTS

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

I-9 AND E-VERIFY WEBINARS

USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes.  For more information or to register, see: https://www.justice.gov/crt/webinars.

E-Verify webinar schedule:  https://www.e-verify.gov/calendar-field_date_and_time/month/202004.

 

AGENCY PROCESSING TIMES

USCIS case processing times: https://egov.uscis.gov/processing-times/

US Department of Labor:   https://flag.dol.gov/processingtimes

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

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This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country.   Larrabee Albi Coker LLP is an active member of ABIL.

Legal Disclaimer:   This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.

 

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