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February 2021

Blog > Immigration Updates

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1. President Biden Sets in Motion a Flurry of Immigration Actions in First Days

Newly inaugurated President Joseph R. Biden wasted no time in his first days in office, launching a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals. Below is a summary:

Executive Orders

  • “Proclamation on Ending Discriminatory Bans on Entry to the United States.” This order revokes a variety of Trump administration orders and proclamations that prevented certain individuals from the United States, such as those from primarily Muslim countries and largely African countries, from entering the United States. The new order states that these Trump administration orders and proclamations “are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” The order says that such orders and proclamations also “have undermined our national security,” “jeopardized our global network of alliances and partnerships” and are a “moral blight that has dulled the power of our example the world over,” in addition to separating families and “inflicting pain that will ripple for years to come.” Among other things, the order also states that when visa applicants request “entry to the United States, we will apply a rigorous, individualized vetting system.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/
  • “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This order refers to DACA guidance issued in 2012 under the Obama administration that “deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.” The new order directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/
  • “Reinstating Deferred Enforced Departure for Liberians.” This order defers through June 30, 2022, with some exclusions, “the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of DED [Deferred Enforced Departure] as of January 10, 2021.” The order also provides for employment authorization for such persons through June 30, 2022, and calls for a notice to be published in the Federal Register. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/reinstating-deferred-enforced-departure-for-liberians/
  • “Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction.” Among other things, this order calls for a pause on construction work and funding for the southern U.S. border wall and an assessment of related legal, administrative, and contractual issues. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-termination-of-emergency-with-respect-to-southern-border-of-united-states-and-redirection-of-funds-diverted-to-border-wall-construction/
  • “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities.” This order revokes a Trump administration order issued January 25, 2017 (“Enhancing Public Safety in the Interior of the United States”) and states that the Biden administration will “reset the policies and practices for enforcing civil immigration laws to align enforcement” with certain values and priorities, including protecting national and border security, addressing the humanitarian challenges at the southern border, ensuring public health and safety, and adhering to “due process of law as we safeguard the dignity and well-being of all families and communities.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration–enforcement-policies-and-priorities/

Regulatory Actions

A memorandum to the heads of executive departments and agencies sent by Ronald Klain, President Biden’s chief of staff, states that President Biden is calling for a regulatory freeze pending review of any new or pending rules, with possible exceptions for emergency or urgent situations. The memo states that no rule should be proposed or issued “in any manner,” including by sending a rule to the Office of the Federal Register (OFR), “until a department or agency head appointed or designated by” President Biden reviews and approves the rule. President Biden ordered that rules that have been sent to the OFR but not published in the Federal Register to be immediately withdrawn. For rules that have been published or issued in any manner but have not yet taken effect, President Biden ordered department and agency heads to “consider postponing the rules’ effective dates for 60 days” so they can be reviewed. The memo also calls for the consideration of opening a 30-day comment period. The memo calls for the Office of Management and Budget director to implement the regulatory review. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/

Legislative Proposals

  • President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:
    • Provide worker protections and improvements to the employment verification process.
    • Clear employment-based visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
    • Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
    • Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
    • Reform family-based immigration.
    • Increase diversity visas from 55,000 to 80,000.
    • Promote immigrant and refugee integration and citizenship.
    • Prioritize border controls that include technology and infrastructure improvements.
    • Manage the border and provide various resources to protect border communities.
    • Crackdown on criminal organizations.
    • Address underlying regional causes of migration.
    • Reform immigration courts.
    • Support asylum seekers and other vulnerable populations.
    • Change the word “alien” to “noncitizen” in U.S. immigration laws.

It will be interesting to follow these myriad proposals and actions as they make their way through the agencies, the regulatory and legislative processes, and the courts. Some Republicans have already signaled their resistance to aspects of the legislative proposals. Sen. Lindsey Graham (R-SC), for example, said comprehensive immigration reform “is going to be a tough sell given this environment, but doing DACA, I think, is possible.” Stay tuned.

Details:

2. DHS Pauses Certain Removals for 100 Days

The Department of Homeland Security (DHS) announced on January 20, 2021, that it is pausing for 100 days removals for certain noncitizens ordered deported, with exceptions. DHS said the action is intended “to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety” and to “allow DHS to ensure that its resources are dedicated to responding to the most pressing challenges that the United States faces.” Among those issues, a press release states, are “immediate operational challenges at the southwest border in the midst of the most serious global public health crisis in a century.”

DHS said it will “continue to enforce our immigration laws” throughout “this interim period.” The memo calls for a review of policies and practices related to immigration enforcement.

Meanwhile, Ken Paxton, Texas Attorney General, sued the Biden administration over the new policy to pause removals, stating that the “unlawful reversal” “ignored basic constitutional principles and violated [the government’s] written pledge” made in the last weeks of the Trump administration “to work cooperatively with the State of Texas to address shared immigration enforcement concerns.”

Details:

3. DOS Announces Reconsideration of Visa Denials Based on Travel Bans

On January 22, 2021, the Department of State (DOS) announced that it will undertake a review “to ensure that individuals whose immigrant visa applications were denied on the basis of the suspension and restriction on entry imposed by P.P. [Presidential Proclamations] 9645 or 9983 may have their applications reconsidered.” In addition to considering whether to reopen such applications, the agency will consider whether to charge an additional fee for processing them and will develop a plan to expedite their consideration. The review is taking place in response to President Biden’s proclamation signed on January 20, 2021, ending travel restrictions under earlier Trump administration proclamations that suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

The DOS announcement also noted:

Pending the Department’s review, under current Department regulations Immigrant visa (IV) applicants who were previously refused due to either P.P. 9645 or 9983 and were determined not to qualify for a waiver before January 20, 2020, must submit a new visa application (DS-260) and pay a new visa application processing fee. IV applicants refused due to either P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated, or who were determined not to qualify for a waiver within one year of January 20, 2021, and who also request their local embassy or consulate to resume processing on their case within one year of January 20, 2021 may be able to resume processing of their case without submitting a new application or paying a new visa application processing fee. Embassies and consulates will prioritize the adjudication of applications for those individuals who remain in the waiver process.

Nonimmigrant visa applicants who were previously refused due to either P.P. 9645 or 9983 and did not qualify for a waiver will need to submit a new visa application (DS-160) and pay a new visa application processing fee if they wish to reapply for a visa.

The announcement warns that processing may be affected by COVID-19 pandemic-related restrictions at U.S. embassies and consulates on a post-by-post basis.

Details:

4. President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers

On January 21, 2021, President Biden signed an executive order to implement public health measures “consistent with CDC [Centers for Disease Control and Prevention] guidelines on public modes of transportation and at ports of entry to the United States.”

Among other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers. The order calls for an assessment of alternative measures (e.g., testing, self-quarantining) for travelers entering the United States from countries where COVID-19 tests are inaccessible, “particularly where such inaccessibility of tests would affect the ability of United States citizens and lawful permanent residents to return to the United States.”

The order also calls for diplomatic outreach to the governments of Canada and Mexico regarding public health protocols for land ports of entry.

Details:

5. Census Bureau Director Under Trump Resigns Amid Flurry of Accusations re Data on Undocumented Immigrants

The U.S. Census Bureau announced on January 16, 2021, that it is complying with a court order in a case brought by the National Urban League against former President Trump’s orders to exclude data on undocumented immigrants from the 2020 Census. Specifically, the Bureau instructed its staff not to finalize, report, or publicly disclose any reports, estimates, or data relating to such orders before the change of administration, and to provide detailed notice before releasing any such information that is finalized. This action also followed complaints about how the Bureau’s director was handling data on undocumented immigrants.

According to reports, apportionment data may not be available until March 2021, exceeding the statutory deadline of December 31, 2020. A memo issued January 12, 2021, by the Commerce Department’s Office of Inspector General (OIG), the latest director of the U.S. Census Bureau under the Trump administration, stated that Director Steven Dillingham had been rushing to produce a technical report that would include data on documented and undocumented persons in the United States before the end of the Trump administration. Whistleblowers complained that they had not had “sufficient time to conduct their normal data quality checks” and expressed concern that the data required were “not ready for publication.” The Commerce Department’s memo further stated that Dr. Dillingham “inquired into a financial reward for speed on this directive.” The OIG asked for information on various aspects of the report and the processes and timelines for producing it.

Subsequently, Dr. Dillingham resigned effective January 20, 2021, and Politico pronounced “dead” the Trump administration’s push to exclude the undocumented from the Census.

Details:

6. Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship

The Departments of Labor (DOL) and Homeland Security (DHS) issued final rules making substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers. Below are selected highlights of the two rules and related guidance.

DOL final rule. On January 14, 2021, DOL published a final rule changing the prevailing wage methodology for several immigrant and nonimmigrant foreign worker programs. The final rule is effective March 15, 2021, but filers will not be required to use the revised prevailing wage methodology until July 1, 2021.

Among other things, the final rule changes the calculation of prevailing wages for jobs requiring certain employment-based immigrant visas or for jobs in the PERM, H-1B, H-1B1, and E-3 visa programs for which employers seek labor certification. The related interim final rule, issued in October 2020, was scuttled by court decisions. DOL said it made changes to the interim rule in response to comments. For example, the agency adjusted the Level I and Level IV wages down to the 35th percentile and 90th percentile, respectively, and is implementing changes to how it uses data in the H-1B and PERM programs “that will further reduce the incidence of inappropriately inflated wages identified by commenters.” DOL also is adopting a “phase-in approach” to give employers and workers time to adapt.

DHS final rule. On January 15, 2021, DHS released a final rule on its website that it has sent for publication in the Federal Register. The rule amends its regulations, for petitions filed on or after the effective date of the regulation, to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between an H-1B petitioner and a beneficiary for the purposes of qualifying as a “United States employer.” DHS said it is not finalizing other provisions of the related interim final rule published in the Federal Register on October 8, 2020, and that it “plans to pursue future rulemaking for those provisions,” which were vacated by the U.S. District Court for the Northern District of California on December 1, 2020.

The final rule adopts a “common-law test” for determining which entities have an employment relationship with an H-1B worker. Under the common law, DHS explained, “multiple entities can have an employment relationship with a worker simultaneously.” Under a third-party placement arrangement, therefore, it is possible that the third-party entity would also be considered an employer of the H-1B worker and would be required to file a petition for the H-1B worker. DHS said that because adoption of the rule “may require adjustments to business practices on the part of employers, including third-party common-law employers,” the agency determined that it is appropriate for the rule to take effect 180 days from publication.

Related guidance. DOL’s Office of Foreign Labor Certification (OFLC) revised its interpretation of regulations concerning which employers of H-1B workers must file a Labor Condition Application (LCA). Under the interpretation announced on January 15, 2021, all common-law employers of H-1B workers, including any secondary employers meeting the common-law test, must file an LCA.

The OFLC bulletin explained that H-1B employment frequently involves primary employers, such as staffing agencies, that petition to hire H-1B workers, as well as secondary employers, such as staffing agencies’ clients, where the H-1B workers are assigned to work. Secondary employers must now comply with the statutory and regulatory requirements of the H-1B program if they are common-law employers of the H-1B worker, OFLC said.

Also, on January 15, 2021, DOL released a bulletin providing guidance to Wage and Hour Division field staff regarding H-1B program obligations for common-law employers “in light of interpretive changes being made” by DHS and DOL.

Litigation is expected.

Details:

7. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.

For 2021, the Departments agreed to:

  • Add the Philippines to the H-2B list;
  • No longer designate Samoa and Tonga as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
  • No longer designate Mongolia as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program.

Details:

8. SEVP Announces New OPT Employment Compliance Unit

The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training. The unit will publish a report at least annually on its findings, with the first report to be published on ICE.gov by July 31, 2021.

The unit will be responsible for “recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure that the OPT programs operate in a lawful manner at U.S. worksites.” The unit will also “evaluate whether employers are adhering to the attestations and training plans required under the OPT extension, which will include on-site visitation.”

Details:

9. U.S. To Require Negative COVID-19 Tests From International Arrivals

HEADLINES

SUMMARY

  1. PRESIDENT BIDEN SETS IN MOTION A FLURRY OF IMMIGRATION ACTIONS IN FIRST DAYSNewly inaugurated President Joseph R. Biden launched a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals.
  2. DHS PAUSES CERTAIN REMOVALS FOR 100 DAYSThe Department of Homeland Security announced that it is pausing for 100 days removals for certain noncitizens ordered deported, with exceptions.
  3. DOS ANNOUNCES RECONSIDERATION OF VISA DENIALS BASED ON TRAVEL BANSThe Department of State will undertake a review to ensure that those whose immigrant visa applications were denied because of Trump administration proclamations may have their applications reconsidered.
  4. PRESIDENT BIDEN ORDERS COVID-19 RELATED PUBLIC HEALTH MEASURES FOR DOMESTIC AND INTERNATIONAL TRAVELERSAmong other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers.
  5. CENSUS BUREAU DIRECTOR UNDER TRUMP RESIGNS AMID FLURRY OF ACCUSATIONS RE DATA ON UNDOCUMENTED IMMIGRANTSThe Census Bureau’s former director resigned after whistleblowers complained about the handling of data and reporting on undocumented immigrants, and following implementation of a court order.
  6. LABOR, HOMELAND SECURITY DEPT. ISSUE FINAL RULES CHANGING PREVAILING WAGE METHODOLOGY, EMPLOYER-EMPLOYEE RELATIONSHIPThe agencies’ final rules make substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers.
  7. DHS ANNOUNCES COUNTRIES ELIGIBLE FOR H-2A AND H-2B VISA PROGRAMSThe Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.
  8. SEVP ANNOUNCES NEW OPT EMPLOYMENT COMPLIANCE UNITThe Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training.
  9. U.S. TO REQUIRE NEGATIVE COVID-19 TESTS FROM INTERNATIONAL ARRIVALSEffective January 26, 2021, all airline or other aircraft passengers arriving in the United States from any foreign country, with a few exceptions, must present either a negative pre-departure coronavirus test or documentation of recovery from COVID-19.
  10. DHS EXTENDS CANADA-U.S.-MEXICO BORDER RESTRICTIONSThe Department of Homeland Security extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021.
  11. KLASKO NEWSThe latest news at the firm including recent and upcoming events and publications.

10. DHS Extends Canada-U.S.-Mexico Border Restrictions

The Department of Homeland Security (DHS) extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021. The restrictions suspend entry via land border, ferry crossing, passenger rail, or coastal ports of entry from Canada and/or Mexico for pleasure boat travel of immigrants and nonimmigrants, including any travel that is not deemed essential. The restrictions do not apply to air, freight rail, or sea travel.

The determination of essential travel is at the discretion of the port of entry and exceptions to the restrictions include U.S. citizens and lawful permanent residents returning to the United States, individuals traveling for medical purposes and to attend educational institutions, individuals traveling to work in the United States, and other reasons.

Details:

11. KLASKO NEWS

IRM NEWS

William A. Stock | Elise A. Fialkowski | Michele G. Madera
The Klasko employment-based immigration attorneys covered the lottery registration process, lessons from 2020, what employers need to do to prepare now, strategic advice for success, and more. Click here to view the webinar recording.

IN THE NEWS

William A. Stock
Bill was mentioned in several Forbes articles this month.

  • On January 4th, Bill was quoted in this Forbes article on the outlook on H-1B visas and international students in 2021.
  • On January 18th, Bill was quoted in this Forbes article on the DHS and the DOL releasing a regulation that will impact IT and professional companies’ ability to service H-1B holders.
  • On January 19th, Bill was also quoted in this Forbes article about the long delays and ICE investigative units for students on OPT.
  • On January 21st, Bill was quoted in this Forbes article about what impact will the new administration have on the rule to end the H-1B lottery.

RECENT SPEAKING ENGAGEMENTS

Jessica A. DeNisi
Jessica spoke at the Golden Gate Global webinar event on the United States Immigration Investment Opportunities.

William A. Stock | Elise A. Fialkowski | Michele G. Madera
On January 27th, Bill, Elise, and Michele presented in a Klasko event titled 2021 H-1B Lottery: Preparing for a New Administration discussing H-1B cap season essentials and the latest developments for U.S. employers and their sponsored employees.

UPCOMING SPEAKING ENGAGEMENTS

William A. Stock
Bill will be speaking in the TexasBarCLE 19th Annual Advanced Immigration Law 2021 virtual event on a panel entitled Advanced Issues for Business Visitors.

ICYMI: RECENT BLOG POSTS AND ALERTS

February 2021 Visa Bulletin
In this blog, the USCIS gives an update on which chart to use for employment and family-based categories.

International Holiday Travel Causing Immigration Headache for U.S.-Based Foreign National Employees
In this article, Jordan J. Gonzalez covers how international holiday travel caused an immigration headache for U.S.-based foreign national employees.

Client Alert: Department of Labor to Publish Final H-1B and PERM Wage Rule
Bill Stock addresses the Department of Labor providing an advanced copy of final rulemaking changes to the prevailing wage system for the employment-based green card process and the H-1B nonimmigrant visa in this client alert.

How to Work in the U.S.: A Brief Guide to U.S. Employment Based Immigration
In this blog, learn the most common visa options that the employment based immigration lawyers at Klasko obtain for clients regularly.

Klasko Staff Travels: Rachel Townzen Visited Every Continent
In this blog, explore the travels of Klasko’s employee Rachel Townzen and her visit to all seven continents.

USCIS Publishes Final Rule to Modify H-1B Cap Selection Process
Bill Stock covers the USCIS announcement of the publication of a final rule for new H-1B petitions in 2021 in this client alert.

FIRM FEATURE

Every month one Klasko employee is nominated for a Ronny Award. This month the Ronny Award went to Paralegal Mansi Shah. Her nominator wrote:

“I would like to nominate Mansi Shah. Mansi is not only a dedicated, knowledgeable, and hardworking Paralegal, but she is kind and patient. Starting a new job remotely is very challenging, but Mansi has been there every day to answer every question and explain every process in the most effective, professional, respectful, and caring way. Mansi has gone above and beyond to make my transition very manageable. She constantly helps the entire team and teaches me in the kindest and most professional way how to be a better Paralegal.”

Congratulations, Mansi!

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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.[Back to Top]

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