DHS Public Charge Rule Vacated Nationwide
This morning, on November 2, 2020, the district court in Cook County, Illinois, et al v. Wolf et. al. , (19-cv-6334), granted summary judgment in favor of Plaintiffs on their claim that the Department of Homeland Security’s (DHS) Public Charge Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019) violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq. The district court specifically ruled that (1) the public charge exceeds DHS’s authority under the public charge provision of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(4)(A); (2) is not in accordance with law; and (3) is arbitrary and capricious. Therefore, the court immediately set aside the DHS Public Charge Rule nationwide without staying its decision pending appeal, meaning that DHS may not apply the public charge rule as of today, which includes the submission of Form I-944 and the information contained therein. Although the USCIS has not yet updated its website, the vacatur of the rule is effective immediately.
DHS Proposal Seeks H-1B Cap Selection Process Based on Wage Level and other Fast Track rules Affecting the H-1B Program
The Department of Homeland Security (DHS) is proposing a regulation that seeks to replace its random, computerized H-1B lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s four-level wage system. The proposed rule, which is expected to be published in the Federal Register in the coming days, will give priority to in the H-1B selection process to foreign nationals whose offered salary falls in the highest level of their occupation.
The forthcoming proposal is the latest effort by the Trump Administration to restrict the H-1B program. The Department of Labor and DHS fast-tracked two rules related to this effort. The first rule, which took effect on October 8, significantly increased Occupational Employment Statistics (OES) prevailing wage levels for the H-1B program. Please click here for more info.
As stated in our alert, on October 8, 2020, DOL and DHS issued companion rules targeting employment-based immigration, and particularly the H-1B program. The rules were issued as interim final regulations, bypassing public notice and comment. The agencies justified expedited review and implementation of the rules on the grounds that they were necessary to support U.S. workers amid the economic impact of the COVID-19 pandemic. The DOL rule in regard to wages took effect immediately on October 8 and the DHS rule is slated to take effect 60 days after publication, on December 7.
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). The plaintiffs in three federal lawsuits assert that 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. The lawsuits also charge that 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.
The lawsuits are Chamber of Commerce et al. v. DHS et al., Case No. 20-CV-7331 (N.D. Ca., October 19, 2020), which challenges both the DOL and DHS rules, and Purdue, et al. v. Scalia, Case No. 1:20-CV-03006 (D.D.C., October 19, 2020) and ITServe Alliance Inc., et al. v. Scalia , Case No. 3:20-14604 (D.N.J., October 16, 2020), which focus specifically on the DOL rule.
President Trump has made H-1B reform a priority in his June proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants. The new DHS regulation, along with the Department of Labor Regulation affecting wage minimums for the H-1B and PERM programs, are the result of that proclamation.
VISA BULLETIN : NOVEMBER RELEASED
According to the State Department’s November Visa Bulletin , final action cutoff dates for issuance of an immigrant visa will be as follows:
EB-1: All countries except for China and India will remain current in November. China and India will advance by six months to December 1, 2018.EB-2: China will advance by just over seven weeks to April 22, 2016, while India will advance by three weeks to September 22, 2009. All other countries will remain current.EB-3 Professionals and Skilled Workers: Cutoff dates for China will advance four months to October 1, 2017, and for India will advance one and a half months to March 1, 2010. All countries will remain current in November.EB-5: Regional and non-Regional Center Programs will remain current for all countries except China and Vietnam. China will remain at August 15, 2015, while Vietnam will advance by two weeks to August 15, 2017.
U.S. Citizenship and Immigration Services (USCIS) has announced that it will honor the State Department’s Dates for Filing chart for adjustment of status filings in November. To be eligible to file an employment-based adjustment application in November, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country.
TRAVEL TO CANADA AND MEXICO
The Trump Administration’s ban on “non-essential” travel across U.S. land borders and ferry travel with Mexico and Canada will continue according to a DHS Fact Sheet . The restrictions were due to expire on September 21.
The initial ban on non-essential travel across the northern and southern borders began on March 21 in response to the COVID-19 outbreak; it was originally scheduled to expire on April 20, and was extended several times. The policy may again be reviewed for possible extension in October depending on the status of the COVID emergency. The restrictions do not affect air travel.
FEE INCREASES
On October 19th , as noted on our prior announcement, U.S. Citizenship and Immigration Services (USCIS) has increased the premium processing fee for H-1B, L-1 and certain immigrant visa petitions to $2,500, from $1,440, refer to announcement .
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 law also gives the Department of Homeland Security (DHS) the authority to designate other case types for premium service. DHS has provided no indication of when this expansion will take place. Until further notice, premium processing will remain limited to certain I-129 nonimmigrant worker petitions, including H, L, O, P and R petitions, and certain Form I-140 immigrant worker petitions.
United States – DOL Announces Permanent Issuance of Electronic PERM Labor Certifications
The United States Department of Labor’s Office of Foreign Labor Certification announced September 25 that the agency has permanently adopted the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents. The announcement makes permanent the agency’s temporary accommodation, first announced on March 24, 2020, that PERM labor certifications would be sent by email as opposed to postal mail due to the impact of the COVID-19 pandemic. This accommodation was originally set to expire on June 30, but was later extended to September 30, 2020.
