U.S. will suspend entry for certain individuals who have been physically present in India

This alert applies only to individuals currently in India, or who are considering travel to India. If this does not describe your situation, you may disregard the message.

U.S. will suspend entry for certain individuals who have been

physically present in India

On April 30, 2021, President Biden issued a Proclamation suspending entry to the United States of certain nonimmigrants physically present in India. An earlier White House press release stated, “On the advice of the Centers for Disease Control and Prevention, the Administration will restrict travel from India starting immediately.” The policy will take effect at 12:01 a.m. EDT on Tuesday, May 4, 2021.

In the Proclamation, U.S. governmental agencies are ordered to take measures to prevent entry to the U.S. of individuals who have been physically present in India during the prior 14 days, unless an exemption or exception applies.

The following groups are exempted from the restrictions:

  • U.S. citizens and lawful permanent residents to the U.S.,
  • Spouses of U.S. citizens or lawful permanent residents,
  • Parents or legal guardians of U.S. citizens or lawful permanent residents if the citizen or permanent resident is unmarried and under the age of 21,
  • Siblings of U.S. citizens or lawful permanent residents as long as both individuals are unmarried and under the age of 21,
  • Children, foster children, or wards of a U.S. citizen or lawful permanent resident,
  • Certain diplomatic visa holders,
  • Members of the U.S. Armed Forces and their spouses and children,
  • Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus.

The policy will prevent issuance of a nonimmigrant visa to individuals present in India during the 14 days before their visa application, unless the applicant demonstrates that he or she meets the criteria for a “National Interest Exception.”

If you are currently in India and have a valid U.S. visa or travel document, it is advisable to return to the U.S. before Tuesday, May 4th. Elective travel to India should be avoided if possible. If travel to India cannot be avoided, then please be advised that this Proclamation will remain in place until rescinded by President Biden, and return travel from India to the U.S. will be significantly delayed. Another option would be to depart India, quarantine for 14 days in a non-restricted country, and then apply for a visa or travel to the U.S. with a valid visa or other valid travel document. We will continue to provide updated information as soon as it is available.

H-1B, H-2B, J-1 and L-1 Visa Restrictions Lifted

H-1B, H-2B, J-1 and L-1 Visa Restrictions Lifted

The U.S. Department of State officially confirmed today, April 1, 2021, that Presidential Proclamation 10052 (“PP 10052”) expired on March 31, 2021 and is no longer in effect. PP 10052 temporarily suspended the entry of certain H-1B, H-2B, J-1 (for certain categories within the Exchange Visitor Program), and L-1 nonimmigrants.

This means that applicants in those visa categories will now be eligible to apply for such non-immigrant visas at U.S. Consulates abroad. However, it’s important to note that the travel restrictions relating to foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa within the 14-day period before seeking entry into the United States remain in effect.

Any applicant who was previously refused a visa due to the restrictions of PP 10052 can reapply now by submitting a new application including a new fee. U.S. Consulates will continue to schedule appointments and process visa applications according to the existing phased resumption of visa services framework, which is based on local conditions during the COVID-19 pandemic. Therefore, even though PP 10052 has expired, the availability of non-immigrant visa appointments may be limited in certain posts due to restrictions on facilities, staffing resources, and local conditions in each country.

What has changed? What remains the same? The First 30 Days of the Biden Administration from a Business Immigration Perspective

What has changed? What remains the same? The First 30 Days of the Biden Administration from a Business Immigration Perspective

Since taking office on January 20, President Biden has issued several directives reversing the previous administration’s immigration policies, while others remain in effect. Further, the U.S. Citizenship Act of 2021, a bill that could make significant changes to the U.S. immigration system if enacted into law, has been introduced in the House of Representatives and the Senate.

We have summarized below the most relevant updates from a business immigration perspective regarding these recent changes. The summary below reflects updates as of March 2, 2021.

  • Immigrant Visa Ban Rescinded

Presidential Proclamation 10014, which suspended issuance of immigrant visas, has been rescinded. This means that U.S. Embassies and Consulates around the world should resume immigrant visa processing soon. An immigrant visa is issued to those who intend to reside in the United States permanently.

The Department of State has announced that immigrant visa applicants who have not yet been interviewed or scheduled for an interview will have their applications processed according to the existing phased resumption of visa services framework, which is based on local conditions during the COVID-19 pandemic. As a result, each post’s ability to schedule new appointments will also likely differ based on facilities, staffing resources, and local conditions in each country. The Department of State recently announced that there are approximately 473,000 immigrant visa cases pending at the National Visa Center ready for interviews.

  • Geographic COVID-related Restrictions Remain in Effect

The travel restrictions relating to foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa remain in effect.

The travel restrictions currently in effect suspend entry of foreign nationals who have been physically present in any of the above-referenced regions within the 14-day period before seeking entry into the United States, unless an exception applies. If you require assistance in determining whether an exception would apply to your case, please contact our office for assistance.  

  • Non-Immigrant Visa Ban for H-1B and L-1 Visas Remain in Effect

Presidential Proclamation 10052, which suspends the entry of certain non-immigrant visa applicants, remains in effect. This proclamation includes those applicants applying for  H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas, unless an exception applies.

Although this proclamation could be rescinded sooner, it currently remains in effect until March 31, 2021.  Unless extended, it will “sunset” on March 31, 2021. If you require assistance in determining whether an exception would apply to your case, please contact our office for assistance.

  • Discriminatory Bans on Entry Revoked

On January 20, 2021, President Biden issued a proclamation revoking various directives issued under the previous administration, which had suspended entry of certain nonimmigrants and immigrants from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

As a result, U.S. Embassies and consulates should resume visa processing for nationals of the above-referenced countries consistent with applicable law and visa procedures, including those relating to COVID-19, as detailed above.

  • DOL wage rule

The Department of Labor (DOL) has proposed to delay the effective date of the final rule on computation of prevailing wage levels. The current effective date is March 15, 2021 and would now be delayed to May 14, 2021. This is consistent with a White House memorandum issued shortly after President Biden took office that requested government agencies to consider postponing the effective dates for regulations that have not yet taken effect for 60 days.

If it goes into effect, such DOL rule would change the way prevailing wages are calculated and would result in a significant increase in prevailing wage levels for all occupations where the OES survey data is the prevailing wage source. This means higher wage requirements for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigration visa petitions relying on OES-based prevailing wage determinations. The new rule will be implemented on July 1, 2021 and then adjustments to the wage determinations will be made on a phased approach.

This DOL rule is similar to the one introduced last year but was later set aside following litigation. Litigation is also expected against the new DOL rule if it goes into effect as planned on May 14.

  • Status of Public Charge Rule

President Biden has issued an executive order requiring government agencies to conduct a review ofrecent regulations, policies, and guidance that have set up barriers to the legal immigration system, and has ordered an immediate review of agency actions related to the implementation of the public charge rule.

However, it’s important to note that this executive order does not change the current requirements to file a Form I-944, Declaration of Self-Sufficiency as part of the permanent residency process for those individuals adjusting to permanent residency in the United States.

  • Negative COVID Test Required for Entry into the U.S.

Effective January 26, 2021, all air passengers entering the United States are required to obtain a COVID-19 test within 3 days before their flight to the U.S. departs, and provide written documentation of their laboratory test result to the airline or provide documentation of having recovered from COVID-19.

President Biden has also issued an executive order requesting specific government officials to assess this requirement for any further appropriate regulatory action needed to promote public health measures. This could mean additional negative tests following arrival into the United States or a quarantine period. However, as of March 2, 2021, there is no mandatory quarantine period following entry into the United States.

  • USCIS Reverts Back to Previous Civics Test for Naturalization Process

Beginning on March 1, 2021, USCIS will revert to the 2008 version of the naturalization civics test. Although USCIS had implemented a revised civics test in December 2020, it has now determined that the 2020 revisions may create potential barriers to the naturalization process. A civics test is administered as part of the naturalization process and applicants must demonstrate a knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. There will be a transition period where both tests are being offered and the 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants who submit their naturalization application on or after March 1, 2021, will take the 2008 test.

  • US Citizenship Act introduced in the House of Representatives and Senate

Identical bills of the U.S. Citizenship Act of 2021 have been introduced in the House of Representatives and the Senate. If passed, this could bring significant changes to the U.S. immigration system. From a business immigration perspective, the U.S. Citizenship Act could reduce the employment-based visa backlogs and make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States, among other changes. We will be discussing the U.S. Citizenship Act in more detail in future posts.

It’s that time of year again – H-1B Cap Lottery season!

It’s that time of year again – H-1B Cap Lottery season!

U.S. Citizenship and Immigration Services (USCIS) announced today, February 5, 2021, that the initial registration period for the fiscal year 2022 H-1B cap will open on March 9, 2021 and will run through March 25, 2021. This year’s lottery will follow the same electronic registration process that was first implemented last year. Only those registrations submitted during the registration period will be entered into the cap-subject lottery. Those registrants who are selected will then have the opportunity to submit an H-1B petition for adjudication.

This year’s lottery will continue to be a random selection. Although the Department of Homeland Security had published a rule amending regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions, this rule’s implementation has been delayed and it will not be introduced in this year’s cap lottery.

If you would like additional information regarding the H-1B Cap Lottery, please contact our office.

DHS and DOL Rules Set Aside by District Court

This message is meant only for those clients who have either an H-1B, H-1B1, E-3 or PERM matter with our firm. This information may impact any upcoming filings in those categories. If that does not apply to you, you may ignore this message.

DHS and DOL Rules Set Aside by District Court

On December 1, 2020, the U.S. District Court for the Northern District of California set aside two rules implemented by the Department of Labor (DOL) and by the Department of Homeland Security (DHS)  impacting prevailing wage levels and the H-1B visa process. The DOL rule became effective on October 8, 2020 and the DHS rule was set to become effective on December 7, 2020.

The DOL rule changed how prevailing wages were calculated, which resulted in a significant increase in prevailing wage levels for all occupations where the OES survey data is the prevailing wage source. This meant higher wages for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigrant visa petitions relying on OES-based prevailing wage determinations. The DHS rule amended the criteria for specialty occupation positions in the H-1B context, among other changes.

The District Court decision means that both rules are set aside immediately and the prevailing wage calculations should revert back to those published prior to the introduction of the DOL rule in October.

DHS Proposes rule to Rules to Change H-1B Cap Selection Process

This message is meant only for employers who plan to submit an H-1B cap-subject petition in the FY21 cap lottery. If that does not apply to you, you may ignore this message.

DHS Proposes rule to  Rules to Change H-1B Cap Selection Process

On November 2, 2020, the Department of Homeland Security (DHS) announced a proposed rule change that would replace the H-1B “Cap” lottery with a wage-based selection process. The notice of proposed rulemaking has been published in the Federal Register and a 30-day comment period is open. If a final rule is later implemented after the comment period closes, U.S. Citizenship and Immigration Services (USCIS) would rank the submitted registrations or petitions based on the Occupational Employment Statistics (OES) wage levels, from Level IV (the highest) to Level I (the lowest). The new rule would not affect the order of selection between the regular cap and the advanced degree exemption, so USCIS would continue to first award 65,000 slots to the “Regular Cap” registrants, before using the same ranking and selection process to select registrations for the 20,000 “Master’s Cap” advanced degree exemption.

Paired with recent Department of Labor wage changes, this would mean, for example, that an H-1B petition for a Software Developer, Applications position in Phoenix would have better odds of selection in the H-1B cap if the employer offers the Level IV OES wage of $165,526/year as the salary instead of the Level I wage at $92,685/year, regardless of the actual minimum requirements for the position or the employer’s normal salary offering.

According to Sharvari Dalal-Dheini, Director of Government Relations for the American Immigration Lawyers Association, “This rule, even by the Trump administration’s own admission, clearly violates congressional intent, which rightfully prioritizes the selection of H-1B visas in the ‘order in which they are filed’ and does not limit who can file a petition to those who will pay the most.” We expect that once implemented, this regulation will be swiftly challenged in federal court.

Premium Processing Fee Increase Effective Oct. 19, 2020

Premium Processing Fee Increase Effective Oct. 19, 2020

This message is meant only for those clients who have a pending or upcoming filing that is eligible for premium processing, such as H-1B, L-1 and certain I-140 immigrant petitions. If that does not apply to you, you may ignore this message.

U.S. Citizenship and Immigration Services (USCIS) has announced that, effective October 19, 2020, the premium processing fee for all cases will increase from $1,440 to $2,500, except those from petitioners requesting H-2B or R-1 nonimmigrant status, which will increase from $1,440 to $1,500. Any premium processing request that is postmarked on or after October 19, 2020 must include the new fee.

Currently, only non-immigrant petitions filed using Form I-129 and certain I-140 immigrant petitions are eligible for premium processing. Although a new law signed on October 1, 2020 has authorized USCIS to expand premium processing to other categories, including national interest waiver immigrant petitions and EAD applications, USCIS has not yet expanded premium processing for such categories. Therefore, this announcement means that although the premium processing fees are increasing as of October 19 for cases that are already eligible for premium processing services, no expansion of premium processing to new categories has been announced yet.

New DOL and DHS Rules to Change H-1B Process and Prevailing Wage Levels

This message is meant only for those clients who have either an H-1B, H-1B1, E-3 or PERM matter with our firm. This information may impact any upcoming filings in those categories. If that does not apply to you, you may ignore this message.

New rules implemented by the Department of Labor (DOL) and by the Department of Homeland Security (DHS) will significantly impact prevailing wage levels and the H-1B visa process. Both rules will be published in the Federal Register on October 8, 2020. The DOL rule will become effective on the date of publication while the DHS rule will become effective 60 days after publication.

The DOL rule will amend regulations governing permanent labor certifications and labor condition applications (LCAs) by changing how prevailing wage levels are calculated, which will result in higher prevailing wages for all occupations where the OES survey data is the prevailing wage source. The new rule will only apply to pending or new applications for prevailing wage determination and new LCAs filed on or after October 8, 2020. The new rule will not apply to any previously approved prevailing wage determinations, permanent labor certification applications, or LCAs. The DOL rule will result in higher wages for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigration visa petitions that rely on OES-based prevailing wage determinations.

The DHS rule will amend the criteria for specialty occupation positions in the H-1B context, among other changes. The DHS rule will include the following changes:

  • Petitioners will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement by showing that this is always the requirement for the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because the position is so specialized, complex or unique that it is necessarily required to perform the duties of the specific position.
  • For third-party worksite placements (where the beneficiary will work at end-client locations or, for example, a physician who will work for a private practice group at a hospital or other medical facility), DHS will require the petitioner to submit evidence such as contracts, work orders, or other similar evidence to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.
  • The beneficiary’s worksite will be considered a relevant factor when determining whether an employer-employee relationship exists.
  • Third-party placement petitions will be limited to a maximum period of a year.
  • The definition of “employer-employee relationship” will be revised and will include a list of 11 factors that USCIS will consider when determining whether there is an employer-employee relationship between the petitioner and the beneficiary.

Because both rules are expected to significantly alter the interpretation of how H-1B cases have been handled to date, litigation over both rules is expected over the next few weeks and months.

USCIS Prepares to Furlough Thousands of Workers

USCIS Prepares to Furlough Thousands of Workers

USCIS has notified approximately 13,400 of its employees that they will be administratively furloughed when the agency’s funding runs out around August 3, 2020. Although USCIS is a fee-funded agency, multiple news agencies have reported that frequent policy changes, suspension of income-generating immigration programs, and the agency’s focus on vetting and enforcement have caused the budget crisis.

USCIS announced in May 2020 that emergency funding of $1.2B would be needed to continue operations. However, President Trump’s administration has yet to file a formal budget request with the Office of Management and Budget which would inform Congress of the funds needed to prevent furloughs. Therefore, it is unclear if supplemental funding will be approved before furloughs are implemented. If supplemental funding is approved before August 3rd, it is possible that the furloughs may be averted.

Although the agency will continue to accept filings while the employees are furloughed, we anticipate that once the furloughs are implemented, processing times for petitions and applications pending with USCIS will increase substantially. These delays will be complicated by the ongoing COVID-19 pandemic as most foreign workers will not be able to travel abroad to take advantage of faster processing times at U.S. Consular Posts and Embassies.

Our law firm is monitoring the situation closely and will provide additional updates as they become available. If you have questions, please contact our office.

President Trump Issues Amended Proclamation to Clarify Restrictions on certain H/L/J Entries

President Trump Issues Amended Proclamation to Clarify Restrictions on certain H/L/J Entries

On June 29, 2020, President Trump issued an amendment to Proclamation 10052, suspending entry of certain H/L/J workers to the United States. This amendment notes that the limit on entry to the U.S. applies to any individual who does not have a valid nonimmigrant visa in the same category in which he or she is seeking entry to the United States. The proclamation now applies to individuals who:

  1. Were outside the U.S. on or after June 24, 2020;
  2. Did not, on June 24, 2020, have a valid nonimmigrant visa in the same category in which they seek to reenter the U.S.; and
  3. Did not have an official travel document other than a visa (such as Advance Parole) valid on June 24, 2020.

For example, if you were outside the U.S. on the Proclamation’s June 24, 2020 effective date and seek to re-enter the U.S. as an H-1B nonimmigrant, you must have had an H-1B visa stamp valid as of June 24, 2020.

As a reminder, the Proclamation does not apply to workers in H-1B, H-2B, L-1, or J-1 status who were inside the United States as of the effective date of June 24, 2020. Canadian citizens are also exempt from both the amendment as well as the original Proclamation because they are visa exempt. Please contact our office if you have any plans to depart the U.S. while the proclamation is in effect, to ensure that you are eligible to re-enter the U.S.

U.S. businesses continue to raise concerns that such a broad suspension of employment authorized categories will negatively affect the country’s ability to recover from the current economic crisis brought on by the pandemic. Please contact our office with any questions.