A Message from Ron Klasko
In so many ways, this has been the most challenging of years. All of your friends at Klasko Immigration Law Partners sincerely hope that you and your loved ones have stayed well throughout 2020. We, like you, see a light at the end of this long tunnel, both from a health perspective and from the perspective of our great country reaffirming its history of being a welcoming presence for our employees, colleagues, and friends from around the world.
So much has changed in the past year, and our firm has changed with it. We have the deepest appreciation for our clients who have had to deal with unprecedented challenges. We also have the utmost gratitude for our lawyers and staff, who have worked longer hours than ever from remote locations and who have done so with the highest standards of excellence and with a smile.
So good riddance 2020. To all of our clients, staff, and friends, here’s to a happy, healthy, and successful 2021.
USCIS Publishes Final Rule to Modify H-1B Cap Selection Process
On January 7, USCIS announced the publication of a final rule for new H-1B petitions in 2021. The new rule gives priority to those petitions filed that offer “Level IV” wages (wages around the 75th-80th percentile of local wages for the occupation) per the Department of Labor’s OES survey, and then gives priority in descending order to petitions offering Level III, Level II, and Level I wages until the numbers run out.
The selection of new H-1B petitions when demand exceeds the available 85,000 numbers has been by random selection, or “lottery,” for over a decade. This final rule states that random selection will only happen between petitions in the lowest wage band for which numbers are still available: if 50,000 petitions are used in Level IV and III, for example, and more than 35,000 petitioners are offering Level II wages, then the lottery will be held only among those petitions offering Level II wages (with all Level I petitions being rejected).
The rule is scheduled to go into effect in 60 days, before this year’s lottery in March, but will require significant updates to the registration website to collect LCA data for it to work.
Before planning H-1B filing strategy around this rule, however, employers should note that President-elect Biden’s inauguration is on January 20, well before the rule can go into effect. Likely, one of his first acts as President will be to delay the effective date of any final rule that has not yet gone into effect for 60+ days, which will include this rule. That delay will keep the rule from applying to this year’s H-1B lottery.
Even without Biden’s inauguration as the impediment to this rule becoming effective, it will likely be successfully challenged in federal court, because Congress has mandated that H-1B petitions be made available in the order in which petitions are filed, not the order of wages offered.
Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions
On December 31, 2020, President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021, and stating that the proclamation “may be continued as necessary.” The nonimmigrant suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, and summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.
The President also extended a memorandum on visa sanctions, to “continue in force until terminated by the President.” The memo states that “countries that deny or unreasonably delay the acceptance of their citizens, subjects, nationals, or residents from the United States during the ongoing pandemic caused by SARS-CoV-2 [the COVID-19 pandemic] create unacceptable public health risks for Americans.” The earlier memo on which it is based states that “visa sanctions” will be imposed on such countries.
- Presidential Proclamation, Dec. 31, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-continue-present-risk-united-states-labor-market/
- “Extension of Presidential Proclamations 10014 and 10052,” Department of State, Jan. 1, 2021, https://travel.state.gov/content/travel/en/News/visas-news/extension-of-presidential-proclamations-10014-and-10052.html
- Presidential Proclamation 10052, June 22, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
- Presidential Proclamation 10014, April 22, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/
- “Memorandum on Extension of Memorandum on Visa Sanctions,” Dec. 30, 2020, White House, https://www.whitehouse.gov/presidential-actions/memorandum-extension-memorandum-visa-sanctions/
- “Memorandum on Visa Sanctions,” April 10, 2020, https://www.whitehouse.gov/presidential-actions/memorandum-visa-sanctions/
State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021
The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously, only those applicants whose nonimmigrant visas expired within 12 months were eligible for an interview waiver. The expiration period is temporarily extended to 24 months. The policy, which was set to expire December 31, 2021, is now effective through March 31, 2021.
Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.
- DOS notice, https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html
USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants
U.S. Citizenship and Immigration Services (USCIS) announced on December 30, 2020, that it is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.
This extension applies only to those whose applications remained pending on December 31, 2020. Parole (and employment authorization) for such parolees will be extended without interruption through June 30, 2021, or the date on which USCIS makes a final decision on the parolee’s Form I-955 (Application for CNMI Long-Term Resident Status) and Form I-765 (Application for Employment Authorization), whichever is earlier.
- USCIS alert, https://www.uscis.gov/news/alerts/uscis-extends-transitional-parole-for-cnmi-long-term-resident-status-applicants-0
On December 31, 2020, at midnight, the Brexit transition period ended. The United Kingdom is no longer part of the European Union (EU).
British nationals already residing in France can submit “Withdrawal Agreement” residence permit applications. The request can be made on the internet. All British nationals already residing in France before December 31, 2020, are eligible to apply for a residence permit, in accordance with the provisions of the Brexit agreement signed between the UK and the EU. By June 30, 2021, all British nationals wishing to benefit from the provisions of the Brexit agreement to retain their rights to stay and work in France must have a French residence permit.
Applicants must upload documentation, including passport identity pages; proof establishing the date the applicant moved to France, such as a property certificate issued by a notary, a home insurance contract, a home insurance certificate, or an employment contract; and documents relating to the specific situation of each applicant. For example, an employee must provide a copy of their most recent payslip, while a student must provide proof of enrollment in a school or university. After completing these steps, the applicant will receive an application confirmation by email, with a reference number confirming the filing.
Once the file has been processed, an email will be sent to the candidate to make an appointment at the prefecture to finalize the file (fingerprinting, photo, and proof of payment of fees).
It is not yet clear how the applicant will receive the residence permit when it becomes available, whether by post to his or her home in France or by going to the Prefecture a second time.
Presence of fewer than five years
British nationals who resided in France for less than five years as of December 31, 2020, can also apply for a residence permit, depending on their status (e.g., student, employee, temporary worker, posted worker, self-employed professional, unemployed person, family member, long-term visitor). They will be issued a residence permit in accordance with the agreement bearing the specific category, such as “Withdrawal agreement—employee.”
Applicants are advised to prepare certain documents, such as:
- Passport or identity card
- Proof of address in France
- Identity photographs
- Proof of resources: employment contract, pay slips, bank statements
- Proof of professional activity: work certificate signed by the employer confirming the date of the start of employment in France
- Proof of the purpose of the stay in France over the past five years (e.g., employment contract)
British nationals who have resided in France for less than five years as of December 31, 2020, can also apply for a resident card when they can prove that they have lived in France for five years. For example, a British national residing in France as of December 31, 2017, can apply for a resident card as of December 31, 2022.
Presence of five years or more
British nationals who have resided for five years or more in France as of December 31, 2020, are eligible to obtain a resident card valid for 10 years.
Applicants are advised to prepare certain documents, such as:
- Passport or identity card
- Proof of address in France
- Three identity photographs
- Proof of presence in France over the past five years: one document per half-year (e.g., rent receipts, energy bills)
- Proof of resources: employment contract, pay slips, bank statements
Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance
On December 27, 2020, President Trump signed the Consolidated Appropriations Act of 2021, which extends several expiring immigration programs. The E-Verify, Conrad 30, and non-minister religious worker green card programs are reauthorized through September 30, 2021, and the EB-5 Regional Center Program is reauthorized through June 30, 2021. These programs had been set to expire on December 28, 2020. The legislation also provides that certain nonimmigrants who pay taxes and meet other requirements may be eligible for a COVID-19 pandemic recovery rebate.
The Department of State’s Visa Bulletin for January 2021, which was released before Congress voted on this legislation, stated that with respect to the employment fourth preference Certain Religious Workers (SR) category, an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a March 1, 2018, final action date, and for Mexico, which would be subject to a December 1, 2018, final action date.”
With respect to the employment fifth preference (I5 and R5) categories, the bulletin states that an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except China-mainland born, which would be subject to an August 15, 2015 final action date, and for Vietnam, which would be subject to a September 15, 2017 final action date.”
- Consolidated Appropriations Act, 2021, https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-116HR133SA-RCP-116-68.pdf
- January 2021 Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-january-2021.html
I-9 Flexibility Extended to January 31
U.S. Immigration and Customs Enforcement announced an additional 30-day extension to January 31, 2021, of flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to the COVID-19 pandemic. The flexibility applies only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation for the I-9 process.
- ICE extension news release, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-1
- Original ICE news release with information on how to obtain, remotely inspect, and retain copies of identity and employment eligibility documents, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology
On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL enjoining the Department of Labor (DOL) from implementing a final rule on adverse effect wage rate (AEWR) methodology for the temporary employment of H-2A nonimmigrants in non-range occupations. The court’s order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.
Effective immediately, and until further notice, H-2A job orders filed with the State Workforce Agency serving the area of intended employment on or after December 21, 2020, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center for emergency situations, must use the AEWRs in effect on December 20, 2020.
- OFLC announcement (scroll to December 24, 2020), https://www.dol.gov/agencies/eta/foreign-labor
DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns
The Departments of Homeland Security and Justice issued a final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.
The final rule responds to comments and reflects (and, in some instances, modifies) intervening changes made to the regulations since the proposed rule was published in July 2020.
- Final rule, https://bit.ly/2L1uXow
CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico
On December 22, 2020, U.S. Customs and Border Protection (CBP) issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico.
From December 22, 2020, through January 21, 2020, travel from Canada and Mexico into the United States via land ports of entry and ferry service is limited to “essential travel,” as defined in the notices. Essential travel includes, but is not limited to, returning U.S. citizens and lawful permanent residents; individuals traveling for medical purposes, to attend educational institutions, to work in the United States, for emergency response and public health purposes, to engage in lawful cross-border trade, and others. Those subject to the restrictions include those traveling for tourism, including sightseeing, recreation, gambling, or attending cultural events.
The notices do not apply to air, freight rail, or sea travel but do apply to passenger rail, passenger ferry travel, and pleasure boat travel.
Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer as ‘Specialty Occupation’
In a decision issued December 16, 2020, the Ninth Circuit ruled that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.
The court was unpersuaded by USCIS’ reasoning, noting among other things that whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. The court noted that USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “most” computer programmers have a bachelor’s degree. The court pointed out that the regulatory language similarly states that a bachelor’s degree is “normally” required for a computer programmer, and found no appreciable difference between those two descriptions: “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria.” Indeed, the court found USCIS’s reasoning “beyond saving.”
- Innova Solutions v. Baran, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf
- “Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa,” https://bit.ly/3nDu1VV
In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy
As a result of litigation in Vangala v. USCIS challenging USCIS’s blank-space rejection policy, where the agency rejected applications because of blank spaces, USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020. According to counsel, the parties will enter into negotiations to resolve the claims, including a remedy for proposed class members who have had applications rejected.
Those who received a rejection notice dated after December 24, 2020, can contact plaintiffs’ counsel at email@example.com.
- National Immigration Litigation Alliance’s “Affirmative Litigation Docket” (scroll down to Vangala v. USCIS), includes summary and legal documents, https://immigrationlitigation.org/impact-litigation/
Congratulations are in order for firm partners Ron Klasko and Bill Stock. Ron Klasko was included in Uglobal Immigration Magazine’s “Top 25 Global Migration Attorneys” list. Bill Stock was listed in Lawdragon’s top 500 list of “Top Corporate Immigration Attorneys” of 2020.
Klasko Immigration is now on Instagram! For a behind-the-scenes peek into what it’s like to work at and with Klasko, give us a follow: @klaskoimmigrationlaw.
IN THE NEWS
William A. Stock
Bill spoke with Forbes about the Trump administration pushing to restrict the H-1B visas and what these actions could mean for companies, visa holders, and students.
William A. Stock
Bill was quoted in Forbes on what the court decisions mean for the DOL and the DHS H-1B regulations.
William A. Stock
Bill’s essay on paroling children of H-1B workers who age out was one of the 30 compiled proposals by the Cato Institute on deregulatory immigration actions for the Biden administration.
RECENT SPEAKING ENGAGEMENTS
Elise A. Fialkowski
Elise spoke at the 2020 AILA/GMS Virtual Annual Global Immigration Forum on a panel entitled Lone Voyager: The Effect of the Pandemic-Redesigned Workplace on Global Immigration Practice on December 2nd.
On December 9th, Ron spoke at the 2020 Wealth, Tax Planning & Immigration Virtual Expo on a panel entitled What are the USCIS standards, how to challenge the ruling and what happens to the EB-5 investors? investments.
On December 9th, Ron presented in an Investment Migration Council webinar event on a panel entitled The New US Presidential Administration and Immigration – What Happens Now?
Andrew J. Zeltner
Drew spoke to Drexel international students about their visa options after graduation on December 11th.
Jordan J. Gonzalez
Jordan teamed up with Mandi B. Bucceroni to present “Business Immigration Basics” to AILA Philadelphia’s New Member Division on December 17th.
Ronald Klasko was listed as one of Uglobal Immigration Magazine’s “Top 25 Global Migration Attorneys” in the world.
William A. Stock was listed as one of Lawdragon’s “Top Corporate Immigration Attorneys” of 2020.
ICYMI: RECENT BLOG POSTS AND ALERTS
Client Alert: USCIS Publishes Final Rule to Modify H-1B Cap Selection Process
Bill Stock covers USCIS’s publication of a final that amends the H-1B selection process and lottery to favor Level IV wages in this client alert.
Client Alert: Court Halts Prevailing Wage Increase and H-1B Program Changes
In this client alert, Maria M. Mihaylova gives the latest update on the United States District Court for the Northern District of California issuing a decision that suspends the Department of Labor’s prevailing wage increase.
January 2021 Visa Bulletin
In this blog, the USCIS gives an update on which chart to use for employment and family-based categories.
Happy New Year!
Before the holiday break, Klasko sent out gingerbread house kits to employees to compete in the annual gingerbread house decorating contest. With so many creative submissions, Klasko employees voted on their favorite houses.
In first place is Laura Juhas with her light-up gingerbread [dog]house.
In second place is Kristin Dohan with her pretzel log cabin.
In third place is Sean McEntee with his T-rex house.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.