Providing Comprehensive Immigration Services

The US Citizenship Act of 2021 “USCA” is an immigration bill introduced in the House on February 18, 2021 that would create a pathway to citizenship for undocumented people living in the United States who entered on or before January 1, 2021. TPS holders, farmworkers, and people who have DACA or who were eligible for status under the Dream Act would be eligible to become lawful permanent residents immediately.

Other undocumented people could apply for a new form of lawful status called “Lawful Provisional Immigrant” (LPI) status. After five years as an LPI, they could then apply to become lawful permanent residents.

Yes, you read this correctly, “entered on or before January 2, 2021.” Does anyone have any idea how many people we are talking about? Well, here are two interesting estimates:
2019 Brookings Institute study: 10.5 to 12 million people
2018 Yale University study: Over 22 million people

Since people who are here without permission tend to avoid questions from the US government, the 2 estimates list above are probably higher.

So you want to travel to Canada? If so, you need to read this.

All persons arriving from abroad must self-isolate for 14 days following arrival (either individually or with their accompanying family members). Negative COVID-19 Test Results must be provided to the airline on departure and at the port of entry. The test must be performed not more than 72 hours prior to the scheduled departure. At the present time, the Canadian authorities will only accept PCR and LAMP tests.

All persons entering Canada by air must install the ArriveCAN app on their mobile devices (or register on the ArriveCAN website) prior to departure and provide their travel details on the app (or on the website). After arrival, they must check-in periodically with the authorities using the app (or the website).

As of February 22, 2021:

1. Travelers entering Canada at the land border will be required to take a COVID-19 molecular test on arrival as well as toward the end of their 14-day quarantine.

2. All travelers arriving to Canada by air, with some exceptions, will be required to take a COVID-19 molecular test when they arrive in Canada before exiting the airport, and another toward the end of their 14-day quarantine period. With limited exceptions, air travelers, will also be required to reserve, prior to departure to Canada, a 3-night stay in a government-authorized hotel. You have to pay for the hotel along with all associated costs for food, cleaning and security.

3. All travelers, whether arriving by land or air will be required to submit their travel and contact information, including a suitable quarantine plan, electronically via ArriveCAN before crossing the border or boarding a flight.

Quarantine Plan: All persons entering must provide a written Quarantine Plan which meets current Canadian public health requirements to Canadian immigration at the port of entry. The airline you are travelling on may also wish to see it.

So your trip to Canada will require a 3-day stay in a government hotel and then a 14-day quarantine after that as described in your quarantine plan. I hear Mexico is great this time of year.

Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019

On January 25, 2021, President Biden issued a “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.” The Proclamation maintains travel restrictions on individuals from the Schengen Area, U.K., Ireland, China, Iran and Brazil and also adds South Africa to the list of countries with restrictions on entry into the U.S.

This Proclamation will remain in effect until it is terminated, and orders the Secretary of Health and Human Services to provide a recommendation as to whether the Proclamation should be continued, modified, or terminated 30 days from issuance, and by the end of each month thereafter. The Proclamation also orders the Secretary of Health and Human Services to provide a similar recommendation for the China and Iran suspensions within the same initial 30 day window, and by the end of each month thereafter.

Beginning January 26, 2021, all international travelers to the U.S. must provide proof of a negative COVID-19 test to airlines within three days prior to their departure.

As of this moment, H4 spouses of H1B visa holders may apply for and receive employment authorization if the H1B spouse has an approved I-140 Immigrant Petition. The prior administration had issued a proposed regulation to eliminate the ability of H4 spouses to receive employment authorization; however, that proposed regulation has been withdrawn.

Unfortunately, litigation remains pending in federal court challenging the Department of Homeland Security’s (“DHS”) final rule authorizing H4 employment authorization. The court repeatedly stayed further action on the lawsuit because DHS stated it would issue a regulation revoking eligibility of H-4 spouse to receive employment authorization Now that the proposed regulation has been withdrawn, litigation may resume. The federal court case challenging H4 employment authorization is Save Jobs v. DHS and is attached.

On January 18, 2021, a D.C. federal judge issued a partial injunction delaying implementation of increases in immigration court fees for foreign nationals in removal proceedings. The enjoined fee increases were scheduled to take effect on January 19th.

On December 18, 2020, the Department of Justice ("DOJ") published a final rule that increased the fees for those Executive Office for Immigration Review ("EOIR") applications, appeals, and motions that are subject to an EOIR-determined fee. On December 23, 2020, a lawsuit was filed challenging the new fees, primarily on procedural grounds. The January 18, 2021 decision by U.S. District Judge Amit P. Mehta enjoins fee increases for the following forms:

• Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge: Fee remains $110;
• Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer: Fee remains $110;
• Form EOIR-40, Application for Suspension of Deportation: Fee remains $100;
• Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents: Fee remains $100;
• Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents: Fee remains $100; and
• Filing a motion to reopen or reconsider before the Board of Immigration Appeals (BIA): Fee remains $110. Judge Mehta did not enjoin the following fee increases and, as such, these new fees are effective as of January 19, 2021:
• Filing a motion to reopen or reconsider before the Office of the Chief Immigration Judge (OCIJ): Fee increased from $110 to $145. The judge considered this nominal increase to be of minimal impact on plaintiffs; and
• Form EOIR-45, Immigration Practitioner Complaint Form: Fee increased from $110 to $675. This fee was not challenged in the litigation.

The judge also declined to enjoin separately the new $50 fee for filing a defensive asylum application on Form I-589, as that fee is based on a long-standing EOIR policy to collect Department of Homeland Security ("DHS") fees when using DHS forms. As the DHS fee for Form I-589 is currently the subject of two nationwide injunctions, the judge saw no need for a third. Therefore, no fee is required for Form I-589.

In addition, no fee is required for a motion to reopen that is based exclusively on an application for relief that does not require a fee, e.g. Form I-589, or a motion to reconsider that is based exclusively on a prior application for relief that did not require a fee, e.g. Form I-589.

On January 20, 2021, the Department of Homeland Security (“DHS”) issued a memorandum confirming that immigration policies were being reviewed. This review included a 100-day ban on deportations beginning on February 1, 2021. The pause on deportations applies to any noncitizen present in the United States with a final order of removal except one who:

1. According to a written finding by the Director of Immigration and Customs Enforcement (“ICE”), has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.

In opposition to the 100-day ban, the State of Texas requested a Temporary Restraining Order (“TRO”) to enjoin DHS from executing the 100-day ban. On January 26, 2021, US District Judge Drew B. Tipton granted Texas’ TRO which stated:

1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby enjoined and restrained from enforcing and implementing the policies described in the January 20, 2021 Memorandum in Section C entitled “Immediate 100-Day Pause on Removals.”
2. This TRO is granted on a nationwide basis and prohibits enforcement and implementation of the policies described in the January 20, 2021 Memorandum in Section C entitled “Immediate 100-Day Pause on Removals” in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum.

The court ordered the parties to propose a briefing schedule no later than Thursday, January 28, 2021 at 12:00 p.m. with respect Texas’s Request for Preliminary Injunction in its Complaint.

This injunction is effective for 14 days so we will see what happens next.

New regulations issued by the US Citizenship & Immigration Service (“USCIS”) and the Department of Labor (“DOL”) now require that secondary common-law employers of H-1B workers file a Labor Condition Application (“LCA”) and an H1B petition. A typical arrangement is where a staffing or outsourcing company (primary employer) places an H1B worker with another common law employer (secondary employer). 2019 data published by the DOL showed that approximately 39% of certified LCAs were for placements with a secondary entity.

The DOL defines the term “employer” under the common law master-servant relationship. As the DOL previously explained, “the common-law test requires an assessment of all the factors bearing on the employment relationship, with the right to control the means and manner of work being the key determinant but with no one factor controlling.” USCIS will consider the “totality of the circumstances” when determining where or not an employer-employee relationship exists.

Thus, under both the USCIS and DOL regulations, the mere fact that an entity is a secondary, as opposed to the primary employer of an H1B worker is irrelevant to whether that employer should file an LCA. Rather, the relevant consideration is whether a common-law employment relationship exists between the secondary employer and the H1B worker.

A major concern was that secondary employers were not subject to compliance with the H1B provisions and as a result, US workers employed by the secondary employer could be affected negatively. The DOL provided the following example:

An H1B worker must be paid the higher of the prevailing wage or the actual wage. The actual wage is the wage rate paid by the employer that filed the LCA and H1B petition to all other individuals with similar experience and qualifications for the specific occupation. Let’s say that the primary employer’s actual wage for a software engineer is $70,000 per year and that is what the H1B worker is earning. Now the primary employer places the H1B worker with a secondary employer that pays its software engineers $90,000 per year. Now what?

Prior to the new rules, even if the H1B worker was a common-law employee of the secondary employer and worked alongside software engineers earning $90,000 per year, there was no requirement to increase the H1B workers salary. The DOL was concerned that this arrangement may provide the secondary employer with an incentive to lay off U.S. workers or reduce their salaries and instead contract for H-1B workers.

Under the new rules, secondary common-law employers of H-1B workers must now file an LCA and an H1B petition and be subject to all of the H1B provisions. Looks like the H1B worker in the example is going to get a nice raise.

2 big announcements regarding this year’s H1B lottery.

Big announcement #1:

The H1B registration process timeline is as follows:

March 9: H-1B registration process opens at Noon, Eastern Time;

March 25: H-1B registration process closes at Noon, Eastern Time;

March 31: Date by which USCIS intends to notify selected registrants; and

April 1: Earliest date that FY2022 H-1B cap subject petitions may be filed.

Big announcement #2:

USCIS will continue to use the random lottery selection process rather than the proposed selection process that would have ranked applicants by the highest wage level offered by the employer.
On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule that was to replace the prior random selection process with a new process that selects H1B registrations based on the highest Occupational Employment Statistics (“OES”) prevailing wage level.

On February 4, 2021, the DHS posted for public inspection a final rule delaying the effective date of the wage based selection system for H-1B cap-subject petitions until December 31, 2021.
In the final rule, USCIS conceded that it did not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B wage-based selection system for the upcoming FY2022 H-1B cap season.
DHS will accept comments on the delayed effective date for 30 days, until March 9, 2021. During the delayed effective period, USCIS will work through the issues associated with implementation and “DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.”