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November 2020

 

1. Update on the November 2020 Visa Bulletin and Applying for Adjustment of Status

Chart B for November preserves the very substantial forward movement for all categories of employment-based immigrants that was implemented in October. The “dates for filing” in nearly all categories are identical between October and November, so applicants who are still waiting for important documents no longer have a deadline of today for their applications to be filed.

Our firm continues to work with the large number of families who became eligible to apply for adjustment of status in October. These families can now submit applications any time before November 30.

Here are some related resources for your reference:

2. 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 on 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.

Details:

3. 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 the removal of these sentences, DOS said it “would no longer authorize the 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 concerning 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.

Details:


HEADLINES

SUMMARY

  1. UPDATE ON THE NOVEMBER 2020 VISA BULLETIN AND APPLYING FOR ADJUSTMENT OF STATUSThe November Visa Bulletin has been released about two weeks later than usual, and USCIS has allowed applicants to use the “Dates for Advanced Filing” chart (or “Chart B”) for November.
  2. TWO MORE LAWSUITS CHALLENGE NEW DOL, DHS RULESTwo 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.
  3. STATE DEPT. PROPOSES TO ELIMINATE “B-1 IN LIEU OF H” POLICY UNLESS NONIMMIGRANT OTHERWISE QUALIFIESDOS said it would no longer authorize the 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.
  4. DHS CRACKS DOWN ON ALLEGED OPTIONAL PRACTICAL TRAINING FRAUDUSCIS 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.
  5. E-VERIFY RELEASES DO’S AND DON’TS WHEN CREATING CASESE-Verify released a list of “do’s and don’ts” for employers.
  6. LAWSUIT CHALLENGES NEW DOL PREVAILING WAGE RULE FOR H-1BS; OTHER LAWSUITS TO FOLLOWA 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.
  7. USCIS INCREASES PREMIUM PROCESSING FEESA new law requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes.
  8. JUDGE RULES AGAINST DHS IN EXCLUSION OF NEW YORKERS FROM ‘TRUSTED TRAVELER’ PROGRAMSA federal judge ruled that the Department of Homeland Security’s decision to exclude New York residents from trusted traveler programs such as Global Entry was unlawful and resulted in the wrongful exclusion of more than 800,000 New Yorkers from such programs.
  9. FEDERAL JUDGE ISSUES PRELIMINARY INJUNCTION AGAINST TRUMP BLOCK ON H, L, J FOREIGN WORKERSOn October 1, 2020, a U.S. district judge ruled in NAM v. DHS against aspects of President Trump’s June 22, 2020, Proclamation that blocked visa issuance to many foreign workers.
  10. USCIS ISSUES GUIDANCE ON FEE RULE FOLLOWING LITIGATIONA U.S. district court in Immigrant Legal Resource Center et al. v. Wolf, et al., temporarily enjoined DHS from implementing or enforcing USCIS’ August 3, 2020, fee schedule rule and changes to certain other immigration benefit request requirements.
  11. DHS PROPOSES RULE TO AMEND AFFIDAVIT OF SUPPORT REGULATIONSDHS proposes to amend its regulations governing the affidavit of support requirements.
  12. STATE DEPT. ISSUES GUIDANCE ON NATIONAL INTEREST EXCEPTIONS FOR TRAVELERS FROM THE SCHENGEN AREA, UNITED KINGDOM, AND IRELANDDOS recently released guidance on national interest exceptions for travelers from the Schengen Area, United Kingdom, and Ireland. Certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations.
  13. ICE PROPOSES A FIXED TIME PERIOD OF ADMISSION AND EXTENSION-OF-STAY PROCEDURE FOR NONIMMIGRANT STUDENTS, EXCHANGE VISITORS, FOREIGN MEDIA REPRESENTATIVESICE proposes to amend its regulations by changing the admission period of F, J, and I individuals from the duration of status to admission for a fixed time period.
  14. EAD DELAYS DUE TO COVID-19: E-VERIFY/I-9 GUIDANCETo complete the Form I-9 work authorization verification process, new employees who are waiting for their EADs, and current employees who require reverification, may present certain Forms I-797, Notice of Action, as a List C document that establishes employment eligibility.
  15. DOL ANNOUNCES PERMANENT ADOPTION OF ELECTRONIC ISSUANCE OF PERM LABOR CERTIFICATIONSThe Department of Labor announced that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.
  16. KLASKO NEWSThe latest news at the firm including recent and upcoming events and publications.

1. Update on the November 2020 Visa Bulletin and Applying for Adjustment of Status

Chart B for November preserves the very substantial forward movement for all categories of employment-based immigrants that was implemented in October. The “dates for filing” in nearly all categories are identical between October and November, so applicants who are still waiting for important documents no longer have a deadline of today for their applications to be filed.

Our firm continues to work with the large number of families who became eligible to apply for adjustment of status in October. These families can now submit applications any time before November 30.

Here are some related resources for your reference:

2. 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 on 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.

Details:

3. 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 the removal of these sentences, DOS said it “would no longer authorize the 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 concerning 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.

Details:

4. 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.

Details:

5. E-Verify Releases Do’s and Don’ts When Creating Case

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

DO’SDON’TS
REVIEW ACCEPTABLE DOCUMENTS FROM FORM I-9 LISTS OF ACCEPTABLE DOCUMENTSDISCRIMINATE 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 DOCUMENTVERIFY 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 PAYREQUEST 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-9CREATE 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 ITCREATE DUPLICATE CASES FOR THE SAME EMPLOYEE
GIVE EMPLOYEES THEIR FURTHER ACTION NOTICE AND DISCUSS IT WITH THEM PRIVATELYTERMINATE OR TAKE ADVERSE ACTION AGAINST AN EMPLOYEE BECAUSE THEY RECEIVED A TNC
CLOSE CASES TIMELYSHARE ANY LOGIN INFORMATION, INCLUDING USER ID AND PASSWORD
SAFEGUARD ALL PERSONALLY IDENTIFIABLE INFORMATION

Details:

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

A lawsuit filed on 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.

Details:

7. 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.

Details:

8. 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 the 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.”

Details:

9. Federal Judge Issues Preliminary Injunction Against Trump Block on H, L, J Foreign Workers

On October 1, 2020, a U.S. district judge ruled in NAM v. DHS against aspects of President Trump’s June 22, 2020, proclamation that effectively blocked visa issuance to many foreign workers.

More specifically, the proclamation prevented visa issuance to intracompany transferees (L-1A and L-1B), skilled workers in specialty occupations (H-1B), seasonal nonagricultural laborers responding to proven domestic labor shortages (H-2B), and certain exchange visitors in work-study programs (J). The plaintiffs include Intrax, Inc. (a leading operator of cultural exchange programs), the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, the National Retail Federation, and TechNet. Collectively, the plaintiffs’ members include hundreds of thousands of U.S. businesses of all sizes and a variety of economic sectors.

Among other things, the court rejected the government’s position that the Presidential Proclamation implicated the President’s foreign affairs powers simply because it affects immigration. The court noted that this Proclamation deals with a purely domestic economic issue – the loss of employment during a national pandemic – and that in domestic economic matters, the national security and foreign affairs justifications for policy implementations disappear, and normal policy-making channels are the default, which includes the traditional pathway of public rulemaking. Indeed, the court said, “there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”

The court also noted that the Proclamation at issue nullified significant portions of the Immigration and Nationality Act (INA) by declaring invalid statutorily established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond that deadline. “Until, at a minimum, the end of the year, the Proclamation simply eliminates H-1B, H-2B, L-1, and J-1 visas and nullifies the statutes creating those visa categories,” the court noted, “and rewrites the carefully delineated balance between protecting American workers and the need of American businesses to staff their operations with skilled, specialized, and temporary workers.” The court said that the work visa provisions of the INA set out a “finely reticulated statutory scheme” that “reflects a set of legislative judgments that the entry of international workers is in the national interest provided they enter the market under the specific terms and conditions provided by the statute.” The court found that the President’s “wholesale elimination of categories of workers does not supplement this legislative judgment but rather explicitly supplants it by refusing admission to all categories of foreign workers.”

The court granted the plaintiffs’ request for a preliminary injunction pending trial in this action or further order of the court. The scope of relief applies only to the named plaintiffs and their members. Some practitioners advise employers to consider joining NAM or the U.S. Chamber of Commerce to gain relief under the injunction. The government is expected to appeal.

Details:

10. USCIS Issues Guidance on Fee Rule Following Litigation

On September 29, 2020, a U.S. district court preliminarily enjoined the Department of Homeland Security from implementing or enforcing any part of U.S. Citizenship and Immigration Services’ (USCIS) rule on its fee schedule and changes to certain other immigration benefit request requirements.

USCIS said that while the rule is preliminarily enjoined, the agency will continue to:

Accept USCIS forms with the current editions and current fees; and 

Use the current regulations and guidance to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator’s Field Manual chapters 10.9 and 10.10.

Details:

11. DHS Proposes Rule to Amend Affidavit of Support Regulations

The Department of Homeland Security (DHS) proposes to amend its regulations governing affidavit of support requirements.

Certain immigrants must submit an Affidavit of Support executed by a sponsor who agrees to provide financial support to the sponsored immigrant and accepts liability for reimbursing the costs of any means-tested public benefits a sponsored immigrant receives while the affidavit is in effect. In its October 2, 2020, notice of proposed rulemaking, DHS proposes to clarify how a sponsor demonstrates the means to maintain income, such as revising the documentation that sponsors and household members must submit. DHS also proposes to modify when an applicant is required to submit an affidavit from a joint sponsor, who may be a household member for purposes of executing a Contract Between Sponsor and Household Member, and who is considered as part of a sponsor’s household size. DHS also proposes to update reporting and information-sharing requirements between authorized parties and U.S. Citizenship and Immigration Services.

Written comments on the proposed rule and related information collection should be submitted by the deadlines and using the methods specified in the notice.

Details:

12. State Dept. Issues Guidance on National Interest Exceptions for Travelers from the Schengen Area, United Kingdom, and Ireland

The Department of State (DOS) recently released updated guidance on national interest exceptions for travelers from the Schengen Area, United Kingdom (UK), and Ireland. Certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) authorization may travel to the United States following the procedures below:

  • Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
  • Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class, an ESTA authorization that was issued before Presidential Proclamations’ 9993 or 9996 effective dates, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception, should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

DOS said it also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Details:

13. ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Nonimmigrant Students, Exchange Visitors, Foreign Media Representatives

U.S. Immigration and Customs Enforcement (ICE) proposes to amend its regulations by changing the admission period of F, J, and I individuals from the duration of status to admission for a fixed time period. ICE said that admitting individuals in those categories for a fixed period will require those who wish to remain in the United States beyond their authorized admission period to apply for an extension of stay with U.S. Citizenship and Immigration Services or to leave the United States and apply for admission with U.S. Customs and Border Patrol at a port of entry.

If finalized without change, the rule would make the biggest changes to the regulation of international students and scholars in 20 years. Written comments on the proposed rule are due by October 26, 2020, via the method identified in the notice.

Details:

U.S. Citizenship and Immigration Services (USCIS) issued a notice on September 23, 2020, stating that issuance of certain employment authorization documents (EADs) may be delayed due to the COVID-19 pandemic.

14. EAD Delays Due to COVID-19: E-Verify/I-9 Guidance

To complete the Form I-9 work authorization verification process, new employees who are waiting for their EADs, and current employees who require reverification, may present certain Forms I-797, Notice of Action, as a List C #7 document issued by the Department of Homeland Security that establishes employment eligibility, even though the notice states it is not evidence of employment authorization, USCIS said. For the notice to be acceptable, it must include a Notice Date issued between December 1, 2019, and August 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. Both new and current employees may present this notice to complete the I-9 until December 1, 2020. New employees must also present an acceptable List B identity document.

USCIS said that by December 1, 2020, employers must reverify employees who presented the notice as a List C document. Those employees must present new evidence of employment authorization—either their new EADs or any other acceptable documentation they choose—from either List A or List C.

Details:

15. DOL Announces Permanent Adoption of Electronic Issuance of PERM Labor Certifications

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced on September 25, 2020, that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.

On March 24, 2020, OFLC announced that due to the impact of the COVID-19 pandemic, it would electronically issue PERM labor certifications to employers and their authorized attorneys or agents through June 30, 2020. On June 16, 2020, OFLC announced that it was extending that period through September 30, 2020. On July 30, 2020, DOL signed a memorandum of agreement (MOA) providing access to the Department of Homeland Security (DHS) to all applications for permanent labor certification submitted to OFLC through the PERM online system, including the ability to verify that a PERM application has been certified. OFLC said the MOA “eliminates the need for duplicate certification requests and increases the integrity of the PERM program by supporting efforts to combat instances of fraud and abuse in connection with a labor certification and employment-based immigrant and nonimmigrant programs.”

Details:

16. KLASKO NEWS

FIRM NEWS

Recently on Statutes of Liberty: An Immigration Podcast, Ron, Anu, and Drew sat down to discuss the latest immigration policies from the White House and its impact on the U.S. Listen to both parts hereEpisode 17: Legal Immigration: Unprecedented Restrictions and How We’re Helping, and Episode 14: What is Legal Immigration?


IN THE NEWS

H. Ronald Klasko Anu Nair | Andrew J. Zeltner
Ron, Anu, and Drew’s podcast on “What is Legal Immigration?” was reposted by JD Supra.

William A. Stock
Bill was quoted in Forbes on three key factors that persuaded Judge White to rule against Trump’s H-1B visa ban.

William A. Stock
Bill’s blog on “Applying for Adjustment of Status October 2020 Visa Bulletin” was picked up by JD Supra.

William A. Stock
Bill was quoted in the New York Times on the adverse effect on employers hiring high-skilled foreign workers as Trump tries to limit visa access

William A. Stock
Bill was quoted in Forbes on the Trump administration’s new rules that would restrict H-1B visas.

H. Ronald Klasko Daniel B. Lundy
EIN Presswire advertises Ron and Dan’s webinar with EB-5 Affiliate Network on the topic EB-5 projects.

William A. Stock
Bill was mentioned in Forbes on the Department of Labor’s new H-1B wage regulation rule.

William A. Stock
Mitratech Holdings’ blog acknowledges Bill for his panel discussion at Interact 2020 on potential immigration, HR, compliance, and other issues being affected by the sudden shift to the post-COVID-19 reality.


RECENT SPEAKING ENGAGEMENTS

H. Ronald Klasko | Jessica A. DeNisi
On October 14th, Ron and Jessica joined Chetcuti Cauchi Advocates to discuss citizenship-by-investment options to acquire an E-2 visa for high net worth individuals and investors.

Elise A. Fialkowski
On October 22nd, Elise spoke at the I-9 Palooza 2020 virtual event on a panel entitled Understanding I-9 related discrimination and its consequences: A Conversation with the DOJ.


UPCOMING SPEAKING ENGAGEMENTS

Andrew J. Zeltner
Drew will be discussing the tax and immigration considerations for U.S. immigrants in a CPA Academy webinar event on November 2nd.

Jessica A. DeNisi
On November 12th, Jessica will be speaking at the 2020 IIUSA Virtual Industry Forum on a panel entitled Real Estate Workouts: Unique Challenges Facing EB-5 in the Wake on COVID-19.

H. Ronald Klasko
On November 18th, Ron will be speaking at an NJICLE Advanced Immigration Conference virtual event litigation updates.

Elise A. Fialkowski
Elise will be speaking to Widener University on November 19th about U.S. immigration basics, debunking myths, and how the current administration has restricted legal immigration.


ICYMI: RECENT BLOG POSTS AND ALERTS

Client Alert: Update on the November 2020 Visa Bulletin and Applying for Adjustment of Status
The November Visa Bulletin was released two weeks later than usual, allowing applicants to use Chart B..

Critical Developments in US Employment-Based Immigration
In this article, Drew Zeltner addresses the U.S Citizenship & Immigration Services announcement of some potentially transformative regulatory changes.

How Physicians Can Improve Their Chances of Obtaining an EB-1 Visa
This new infographic blog on KlaskoLaw.com outlines five ways physicians can improve their chances of obtaining an EB-1 petition.


FIRM FEATURE

Have you ever wondered what hundreds of adjustment of status applications look like? We know you’ve always wondered, so here they are! The Klasko staff worked day and night (literally) to get hundreds of applications filed before the end of the month!

Great work team!

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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.

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