US Immigration Update: Must Be the Season of the Witch

It’s been a frenetic October and we’re still in the first week. Here is a quick summary of significant developments in U.S. Immigration just within the past few days.

Federal District Court Issues Preliminary Injunction Halting Implementation of Nonimmigrant Visa Ban

On October 1, 2020 Judge Jeffrey S. White of the District Court for the Northern District of California issued an order enjoining the Department of State (DOS) and Department of Homeland Security (DHS) from enforcing, on a limited basis, the June 22, 2020 Presidential Proclamation 10052, that suspended the entry of H-1B, L-1, H-2B and certain J-1 nonimmigrants (along with spouses and children).

In National Association of Manufacturers et al., v. DHS, et al., Judge White limited the scope of the  injunction to the name plaintiffs, and their associated member organizations – the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail FederationTechNet, and Intrax, Inc. Given the challenges faced by DOS and DHS to comply with an injunction limited to specific employers, the agencies may choose to comply with the injunction on a broader basis as indicated in this recent announcement relating to emergency appointments for appointments at U.S. Consulates.

It should be noted that the Presidential Proclamations relating suspending the entry of certain immigrants (Proclamation 10014) and the Novel Coronavirus travel restrictions for certain individuals traveling from China, Iran, the European Schengen Area, the United Kingdom and Ireland, and Brazil remain in effect.

Federal District Court Also Blocks Enforcement of DHS Fee Rule

Judge White has been busy this week because he also issued an injunction, in Immigrant Legal Resource Center, et al., v. Chad F. Wolf, et al. (N.D. Cal., 3:20-cv-05883), enjoining the DHS from enforcing its new fee rule, which was set to take effect on October 2, 2020.  As we explained in our previous blog post, the rule would have significantly increased the filing fees for various immigration petitions and applications, extended the premium processing adjudication timeline to almost three weeks from 15 calendar days,  and revamped the petition forms for employer-sponsored H-1B, H-2A/B, L-1, O, and TN nonimmigrant visa petitions.

For now, the DHS, through the U.S. Citizenship and Immigration Services (USCIS), will continue to accept filings using the current editions of the forms and current filing fees. However, the government is expected to appeal decision.

DOS Announces Surplus of Unused Immigrant Visas; USCIS Opens Floodgates Permitting Additional Applications for Green Cards

Due to substantial slowdowns in family-based immigrant visa processing throughout fiscal year (FY) 2020 caused by the COVID outbreak, consulate closures, reduced government operations and immigrant visa bans, the DOS issued its October 2020 Visa Bulletin announcing a surplus of employment-based immigrant visas, totaling 261,500, for FY 2021 which commenced on October 1, 2020. In turn, the USCIS announced it will permit would-be immigrants to file their Adjustment of Status applications based on the “Dates for Filing” chart in the October 2020 Visa Bulletin. As a result, many individuals (estimated in the 100s of thousands) that have been waiting years to complete their green card process are now eligible to submit the last stage of the process.

President Signs Legislation Expanding Premium Processing

On September 30, 2020, the President signed H.R. 8337 – the Continuing Appropriations Act, 2021 and Other Extensions Act, which funds the government through December 11, 2020. The law includes language from the Emergency Stopgap USCIS Stabilization Act (H.R. 8089),which seeks to address USCIS budget shortfalls by giving DHS immediate authority to increase premium processing fees and expand premium processing services. H.R. 8837 amends the Immigration and Nationality Act as follows:

USCIS is not expected to implement the above changes for several weeks.

New Rules Fundamentally Alter the H-1B Visa Program

On a scarier note, the DHS/USCIS and Department of Labor (DOL) are each publishing rules making drastic changes to the H-1B specialty occupation visa category. The USCIS rule is entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program” (H-1B Rule) and the DOL rule, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels” (Wage Rule). These rules will be published in the Federal Register on October 8th. The H-1B rule will take effect 60 days after publication while the Wage Rule will be effective immediately. The following is a broad overview of the two rules, which are likely to be challenged in federal court:

USCIS H-1B Rule 

DOL Wage Rule

Background: Employers seeking to sponsor foreign nationals for nonimmigrant H-1B, H-1B1, or E-3 visas, must attest that they will pay such nonimmigrant workers the higher of the prevailing wage or the actual wage paid to other employees with similar experience and qualifications. Similarly, employers seeking to sponsor foreign national workers for immigrant visas based on the EB-2 or EB-3 classification, must seek to test the U.S. labor market and recruit U.S. workers for the position using the PWD issued by the DOL, and, if no willing, available, and qualified workers are found, must pay the foreign national worker no less than the prevailing wage.

Looks like these H-1B changes are neither trick nor treat.  “On no, must be the season of the witch.”

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National Law Review, Volumess X, Number 281