U.S. Citizenship and Immigration Services (USCIS) announced March 17, 2015, that it would start adjudicating H-2B petitions again via regular processing. USCIS continues to suspend premium processing on H-2B petitions.

As reported in a blog post March 12, 2015, USCIS and the U.S. Department of Labor (DOL) stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications because of a federal court ruling that vacated the DOL’s 2008 H-2B regulations. The DOL filed an unopposed motion to stay the March 4, 2015, federal court order until April 15, 2015. DOL’s motion indicated that USCIS would resume adjudicating H-2B petitions based on temporary labor certifications issued by the DOL. On March 18, 2015, the federal court granted DOL’s motion and stayed its injunction until April 15, 2015, stating, “given that there are numerous United States employers who rely on the H-2B program to fill their temporary labor needs, the Court agrees that the requested temporary relief is warranted.”

DOL announced March 13, 2015, that it and the Department of Homeland Security intend to issue a joint interim final rule by April 30, 2015, that is consistent with the federal court’s decision.

As a result of a federal court ruling last week, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) have shut down the seasonal employment work visa (H-2B) program. USCIS stopped processing H-2B petitions and the DOL stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications.

On March 4, 2015, in Perez v Perez, the Northern District of Florida vacated DOL’s 2008 H-2B regulations stating that the DOL lacks authority under the Immigration and Nationality Act to issue H-2B regulations. The basis for the ruling is that Congress did not give DOL formal rulemaking authority regarding the H-2B program. Rather, USCIS retains rulemaking authority over the H-2B program, with DOL playing a consulting role.

Neither agency has indicated when it will re-start processing. DOL states that it is “considering its options in light of the court’s decision” and USCIS states that it cannot process applications because H-2B “petitions require temporary labor certifications issued by DOL.”

Meanwhile, hundreds of employers are unable to utilize the H-2B program, which is critical to companies in seasonal industries, such as tourism, agriculture, forestry, and construction.  There are efforts forming to help relieve the situation legislatively and through the courts.

 

On Feb. 21, 2012, the Secretary of Labor issued a Final Rule (Rule) that sought to overhaul the temporary, non-agricultural foreign worker H-2B program for seasonal workers. The rule was preliminarily enjoined by a Federal District Court Judge in the Northern District of Florida barring the Department of Labor from implementing the rule. The 11th Circuit then affirmed the injunction, and on Dec. 18, 2014, Chief Judge Rodgers vacated the H-2B rule and permanently enjoined the DOL from implementing the rule. (See previous stories here and here.)  On behalf of the litigants, Greenberg Traurig and C.J. Lake challenged the Rule in federal court and have obtained the permanent injunction. A copy of the decision can be found here.

 

 

 

U.S. Citizenship and Immigration Services (USCIS) reminded employers this week that Guam’s and CNMI’s five-year H-1B and H-2B cap exemptions will end on December 31, 2014. With a sharp increase in U.S. military-related projects in Guam of late, employers in the country are experiencing a shortage of lesser-skilled and highly-skilled workers, from construction workers through to accountants and engineers. Although officials in Guam are lobbying hard for an extension of the exemption, so far all efforts have been in vain as the Congressional deadlock on all immigration-related bills is halting a range of business immigration initiatives, including the renewal of Guam’s exemption. The major concern for those lobbying for an extension of the exemption is that there will be no action on any immigration-related reform until after the November mid-term elections, and there is no guarantee that Congress will act to extend the exemptions during the few days it is in session after the November election.

Continue Reading Guam and CNMI Employers Beware: H-1B and H-2B Exemptions End Dec. 31

On September 12, 2014, USCIS released the updated “Cap Count” for the H-2B Non-immigrant Visa. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Additionally, any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. However, it is important to note that there is no “carry over” of unused H-2B numbers from one fiscal year to the next.

As of September 12, 2014, USCIS has approved 26,193 H-2B beneficiaries for the second half of FY2014, while 229 remain pending. Further, according to the same report, USCIS has approved 5,014 H-2B beneficiaries for the first half of FY2015, while 1,322 remain pending.

On the first day of his presidency, Joe Biden is sending to Congress his marker for an overhaul of the U.S. Immigration Laws. See link to summary here.

The Biden administration proposes broad changes that will impact immigration law across the board and will also have a significant impact on business immigration if ultimately passed by Congress.

The U.S. Citizenship Act will:

  • Provide a pathway to citizenship for many immigrants who have a destabilized status in the United States, including DACA recipients, essential workers, and TPS holders
  • Provide relief to employment and family immigrant visa backlogs
  • Address the causes of illegal migration

Some of the key details of the legislation that will be important in the business immigration context include:

Earned Permanent residence status and Path to Citizenship

  • Create a path to earn permanent residence and citizenship for certain undocumented individuals. Individuals would apply for legal status or green card lawful permanent resident status for five years and then for more permanent green card status after three years. They would need to pass background checks and pay taxes. Dreamers, TPS holders, and agricultural immigrant workers who meet specific requirements are eligible for green cards immediately under the legislation. Applicants must be physically present in the United States on or before Jan. 1, 2021.
  • Reducing Family Visa Backlogs. The proposal would clear backlogs, recapture unused visas, eliminating lengthy wait times.
  • The proposal would allow immigrants with approved family-sponsorship petitions to join family in the United States in a temporary status while they wait for green cards to become available.
  • Employment-Based immigrant backlogs. This proposal would clear employment-based visa backlogs, recapture unused visas, and eliminate per-country visa caps. The proposal would exempt graduates of U.S. universities with advanced STEM degrees from immigrant visa caps.
  • The proposal creates a pilot program to stimulate regional economic development, by giving DHS the authority to adjust immigrant visa numbers based on economic conditions

This bold legislative proposal is the new administration’s wish list for immigration reform. Congress will now need to take the initiative to craft an immigration bill that can pass both the Senate and the House. Congress has taken up the Comprehensive Immigration Reform challenge over the last two decades. The most recent piece of legislation was S. 744, passed during the Obama administration in 2013. The legislation was passed by the Senate but ultimately was never taken up the House of Representatives.

The complex issue of non-immigrant visas such as H-1B, L-1, H-2B, and any new visa category for the future flow of workers has not been addressed by the Biden proposal and will need to be part of the debate.

Late on Dec. 31, the Trump administration issued a proclamation that has the effect of extending the duration of two proclamations from 2020 that restricted immigrant and non-immigrant visa issuance at U.S. consulates and embassies worldwide. Proclamation 10014 of April 22, 2020, restricted issuance of immigrant visa for 60 days; Proclamation 10052 of June 22, 2020, restricted issuance of certain non-immigrant visas (L-1/L-2, H-1B/H-2B/H-4, certain J-1/J-2 visas) and extended the ban on issuance of immigrant visas until Dec. 31, 2020. As justification for New Year’s Eve proclamation extending the effective date of the earlier proclamations for 90 days, the administration cited the continuing impact of COVID-19 on the U.S. labor market, including the high rate of unemployment in the U.S. The effective date may be extended beyond March 31 if deemed necessary. The U.S. District Court for the Northern District of California has enjoined the implementation of Proclamation 10052 for employers who are members of the Chamber of Commerce, the National Association of Manufacturers,  and the other plaintiff associations. The proclamations may also be rescinded by the incoming Biden administration after it takes office on Jan. 20.

See previous GT blog posts on these proclamations.

On Aug. 12, 2020, the Department of State updated its guidance on the National Interest Exception (NIE) to the June 22 Presidential Proclamation 10052, which extends Presidential Proclamation 10014 through Dec. 31, 2020. Under this updated guidance, individuals subject to the Presidential Proclamations may seek to obtain an H or L visa if they are returning to the United States to continue previously approved employment with the same employer in the same visa category. In addition, the Department of State has provided other financial hardship criteria. This expanded guidance is in addition to the exceptions already in place.

Individuals subject to the Proclamations may request an NIE by following the guidelines of their nearest U.S. Embassy or Consulate, as this process may vary depending on the jurisdiction. Visa applicants may qualify for an NIE if they meet one of the criteria listed below:

H-1B Visa Applicants:

  • The applicant is a public health or health care professional or researcher, travelling for the purpose of alleviating the effects of Coronavirus Disease 2019 (COVID-19), or to conduct ongoing medical research in an area with a substantial public health benefit.
  • The applicant’s travel is supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • The applicant is seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
  • The applicant is a technical specialist, senior level manager, or other worker whose travel is necessary to facilitate the immediate and continued economic recovery of the United States. Consular Officers may determine that an H-1B applicant falls into this category when at least two of the following criteria are met:

1.  The petitioning employer has a continued need for the visa applicant’s services in the United States. This can be established if a Labor Condition Application (LCA) has been approved by the Department of Labor (DOL) during or after July 2020. If the LCA was approved before July 2020, the visa applicant must evidence the employer’s need to employ the visa applicant. Regardless of when the LCA was approved, if an H-1B visa applicant is currently performing or is able to perform the essential functions of their position remotely from outside the United States, then this criterion cannot be met.

2.  The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.However, employment in a critical infrastructure sector alone is not sufficient; the applicant also needs to hold one of the following positions:

a)  Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR

b)  The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

3.  The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15%.

4.  The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.

5.  Denial of the visa under Presidential Proclamation 10052 will cause financial hardship to the U.S. employer. Financial hardship can include the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

L-1A Visa Applicants:

  • The applicant is a public health or health care professional, or researcher travelling to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • The applicant’s travel is based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • The purpose of the applicant’s travel is to resume ongoing employment in the United States in the same position with the same employer and visa classification.
  • The applicant is a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. An L-1A applicant falls into this category when at least two of the following criteria are met:

1.  The applicant will be a senior-level executive or manager in the U.S.;

2.  The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or

3.  The applicant will fill a critical business need for a company meeting a critical infrastructure need.

  • Individuals seeking to establish a new office in the U.S. will need to establish two of the above criteria and establish that the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B Visa Applicants:

  • The applicant is a public health or healthcare professional, or researcher travelling to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • The applicant’s travel is based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • The applicant is seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.
  • The applicant is a technical expert or specialist meeting a critical infrastructure need. The Consular Officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:

1.  The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;

2.  The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND

3.  The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

H-2B Visa Applicants:

  • The applicant’s travel is based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations.
  • The applicant’s travel is necessary to facilitate the immediate and continued economic recovery of the United States. Consular Officers may determine that an H-2B applicant’s travel falls into this category when at least two of the following are met:

1.  The applicant was previously employed and trained by the petitioning U.S. employer. The applicant must have previously worked for the petitioning U.S. employer under two or more H-2B petitions.

2.  The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker. This can be established if a TLC has been approved by the DOL during or after July 2020. If the TLC was approved before July 2020, the visa applicant must evidence the employer’s need to employ the visa applicant.

3.  Denial of the visa pursuant to Presidential Proclamation 10052 will cause financial hardship to the U.S. employer.

J-1 Visa Applicants:

  • The applicant is an au pair possessing special skills required for the care of a minor U.S. citizen, legal permanent resident, or nonimmigrant in lawful status child with particular needs.
  • The applicant is an au pair and the applicant’s travel will prevent a U.S. citizen, legal permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
  • The purpose of the applicant’s travel is to provide childcare services for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
  • The applicant is part of an exchange program conducted pursuant to a Memorandum of Understanding, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
  • The applicant is an intern or trainee in an U.S. government agency-sponsored program and the program supports the immediate and continued economic recovery of the United States.
  • The applicant is a specialized teacher in an Accredited Educational Institution in which the applicant will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States.
  • The applicant is part of a program that fulfills critical and time sensitive foreign policy objectives.

Dependent H-4, L-2, and J-2 Visa Applicants:

NIEs are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a NIE to Presidential Proclamation 10052. In the case of a principal visa applicant who is not subject to Presidential Proclamation 10052, the derivative will not be subject to the proclamation either.

Presidential Proclamation 10052, issued on June 22, 2020, has now been challenged in several federal district courts. As previously reported, Presidential Proclamation 10052 barred the issuance of visas to anyone in H-1B, H-2B, H-4, L-1, L-2, J-1, and J-2 status. Thus, if a person did not have a valid visa at the time of the Proclamation, he or she would not have been able to obtain a new visa from a U.S. consulate or embassy, effective until Dec, 31, 2020, unless the Proclamation was amended. This Proclamation and its bar on the entries of certain nonimmigrants into the country greatly affected the U.S. business community.

As a result of this Proclamation, the most anticipated significant case for the business community was filed on July 21, 2020, in the U.S. District Court for the Northern District of California: National Association of Manufacturers, U.S. Chamber of Commerce et al v. U.S. Department of Homeland Security and U.S. Department of State; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; and, Michael R. Pompeo, in his official capacity as Secretary of State, Defendants. The Plaintiffs seek a nationwide preliminary injunction. They contend that the proclamation is not legal and that it exceeds the statutory and constitutional authority of the president. The Proclamation cites presidential authority in 8 U.S.C. 1182(f) (INA 212(f)) as the basis for the Proclamation. Specifically, the president claims that the entry of certain H, L and J non-immigrants would be detrimental to the interests of the U.S. given the economic crisis brought on by the COVID-19 pandemic. The plaintiffs contend that this authority has no rational relationship to the economic crisis cited as the basis for the order. The plaintiffs argue that the true purpose of the Proclamation was to eliminate foreign workers to open up jobs for U.S. workers and forcibly change hiring practices of U.S. employers. The Plaintiffs argue that shutting down existing hiring patterns for U.S. companies that rely on talent around the globe is not a lawful use of this Executive authority.

The Plaintiffs point out that even the National Interest Exceptions to the Proclamation are not currently being honored. Plaintiffs point out that foreign medical doctors are being turned down for H-1B visas and international researchers studying the effects of COVID-19 are being denied L-1 visas even though they meet the exception criteria.

The Plaintiffs claim that the Proclamation is Arbitrary and Capricious; that is exceeds the Authority of the Executive Branch; and Violates the Administrative Procedure Act. This case is expected to be assigned to a judge quickly and a hearing on the injunction request scheduled in the next two weeks.

On June 22, 2020, President Trump issued a Proclamation, that will be effective on June 24, 2020, suspending the entry of those seeking to enter the United States in certain nonimmigrant statuses. The reasoning behind the issuance of this Proclamation is to not burden the American economy and the healthcare system while it is recovering from COVID-19 and to protect U.S. workers.  He also extended the previous proclamation on Immigrant Visas through the end of 2020. 

President Trump, through the Proclamation, declares the following:

Extends the Immigrant Visa Proclamation:

The Proclamation banning the entry of certain immigrants has been extended to the end of the year, Dec. 31, 2020, and may be continued as necessary.  For more information, please visit our prior blog post.

Effective Dates:

The Proclamation will be effective as of 11:59pm June 24, 2020, and will expire Dec. 31, 2020.  The Proclamation may be continued as necessary.

Application:

1 – The immediate suspension of nonimmigrants entering the United States who are outside the United States, for the following categories:  H-1B (and dependents), H-2B (and dependents), J visa (for intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and dependents; and L visa (and dependents).  This applies only to those who are outside the U.S. on the effective date of the proclamation, do not have a nonimmigrant visa valid as of the effective date, and do not have an official travel document that was valid that permits entry into the United States.

2 – The Proclamation will not apply to the following: those who are lawful permanent residents; any person who is the spouse or child of a U.S. citizen; any person seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain; or any person whose entry would be in the national interest.

Implementation:

The consular officer will be the one to make the decision in his or her discretion whether the applicant has established eligibility pursuant to the exceptions listed above.  The Secretaries of State, Labor, and Homeland Security will be responsible for establishing the standards to define individuals who may be covered the exception of entry in the “national interest.”  This could mean to include those who are critical to national security of the U.S., involved with medical care, medical research, or necessary to facilitate the continued economic recovery of the U.S.

Any person who attempts to circumvent the Proclamation through fraud, willful misrepresentation, or illegal entry will be assessed by DHS for removal.  This Proclamation will not limit the ability of one to seek asylum, refugee status, withholding of removal, or protection under Convention Against Torture.

Additional Measures

In addition, the following agencies are tasked with the following:

  1. Secretary of Health and Human Services:  Provide guidance to implement measures to reduce the risk that aliens seeking admission could spread SARS-CoV-2 in the United States.
  2. Secretary of Labor:  Consider promulgating regulations for the PERM and H-1B programs.
  3. Secretary of Homeland Security:  Ensure that aliens seeking admission into the United States have registered biographical and biometrics information and ensure that prompt removal and deportation is conducted for those who have been ordered to do so.  In addition, the promulgation of regulations for the H-1B program is recommended.

Timing:

The Proclamation will expire on Dec. 31, 2020, and may be continued as necessary.

Additional Notes:

Most U.S. consulates and embassies responsible for issuing immigrant visas are closed at the moment due to COVID-19 safety measures.