Corporate Immigration Law News

• 20Jan

  U.S. Department of Labor Publishes Final Rule Affecting Prevailing Wages

  DOL News Comments Off on U.S. Department of Labor Publishes Final Rule Affecting Prevailing Wages

  On January 14, 2021, the U.S. Department of Labor (“DOL”) published its final rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, which affects the prevailing wages of H-1B, H-1B1 and E-3 nonimmigrant visa classifications and permanent labor certifications (PERM applications) for employment-based 2nd preference (EB-2) and 3rd preference (EB-3) applications. The final rule will go into effect on March 15, 2021, but its implementation will occur in transitions beginning June 30, 2021. According to the DOL, such final rule is required to “allow the Department to more effectively ensure the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.” 86 Fed. Reg. 3608 (January 14, 2021).

  This rule was initially published as an Interim Final Rule (“IFR”) that was immediately effective on October 8, 2020, but was struck down on December 1, 2020 along with the Department of Homeland Security (“DHS”) IFR that amended the requirements for H-1B classification. The DOL IFR dramatically increased prevailing wage levels, where Level 1 wages increased from the 17th percentile to the 45th percentile; Level 2 wages increased from the 34th percentile to the 62nd percentile; Level 3 wages increased from the 50th percentile to the 78th percentile; and Level 4 wages increased from the 67th percentile to the 95th percentile. 85 Fed. Reg. 63872 (October 8, 2020).

  On December 1, 2020, in Chamber of Commerce et al. v. DHS, et al., the U.S. District Court for the Northern District of California set aside the DOL and DHS IFRs, stating that they were issued in violation of the Administrative Procedure Act (“APA”). In addition, on December 14, 2020, in Purdue University, et al. v. Scalia, et al., the U.S. District Court for the District of Columbia ordered the DOL to reissue prevailing wage determinations using the prevailing wage levels that existed on October 7, 2020, finding that the IFR violated the APA. The DOL republished the pre-IFR prevailing wage rates on December 9, 2020.

  In its January 14th final rule, the DOL made amendments to the IFR, which it claims now meets the requirements of the APA stating “The Department is satisfied that it meets the APA’s objective requirements necessary for the promulgation of a final rule in this case. Specifically, the Department’s IFR provided sufficient notice to the public by allowing for a 30 day comment period; “gave interested persons an opportunity to participate in the rule making through submission of written data, views or arguments”; the rule contained a “concise general statement of their basis and purpose”; and the rule will be published more than 30 days before it becomes effective.” 86 Fed. Reg. 3612 (January 14, 2021).

  See table illustration and additional details here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

• 08Jan

  CLIENT ALERT: Trump Administration Extends Suspension of Visa Issuance to Certain Nonimmigrants

  Uncategorized Comments Off on CLIENT ALERT: Trump Administration Extends Suspension of Visa Issuance to Certain Nonimmigrants

  Hours before it was set to expire, the Trump Administration extended Presidential Proclamation 10052, suspending the issuance of certain nonimmigrant visas at U.S Consulates around the world.

  More specifically, such Proclamation effects individuals who are currently outside the United States, and do not already possess a valid nonimmigrant visa (valid as of June 22, 2020, or earlier). Such individuals may not be issued a visa in the following nonimmigrant visa classifications:

  a. H-1B or H-2B (including H-4 dependents);

  b. J-1, interns, trainees, teachers, camp counselors, au pairs, or summer work travel program participants, (including J-2 dependents); and

  c. L -1 (including L-2 dependents)

  The suspension on entry to the U.S. does NOT apply to:

  a. Any lawful permanent resident of the United States;

  b. Any alien who is the spouse or child, of a United States citizen;

  c. Any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and

  d. Any alien whose entry would be in the national interest.

  Originally signed on June 22, 2020 (and valid as of that date), the restriction on nonimmigrant visa issuance was set to expire on December 31, 2020 at 11:59pm, and is now extended through March 31, 2021.

  This Proclamation does not affect extensions of stay or changes of status filed with the USCIS Service Centers in the above referenced nonimmigrant visa categories.

  Our continued advice to all nonimmigrant visa holders in the United States is to avoid non-essential travel as we cannot guarantee there won’t be any adverse decisions by border officers, even in the case of individuals who are currently permitted to travel and re-enter the U.S.  We also cannot guarantee that significant changes will not occur while an individual is outside the U.S. which may preclude their re-entry to the U.S.

  Please note that the new incoming Federal Administration will have the authority to reverse the above described restrictions at any point and, as such, the extension of such restrictions may not remain in place throughout its currently defined duration.  We will continue to provide updates and developments as they become available.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 15Dec

  USCIS Provides Update on Receipt Notice Delays

  USCIS News Comments Off on USCIS Provides Update on Receipt Notice Delays

  USCIS Provides Update on Receipt Notice Delays for Forms Filed with USCIS Lockbox

  USCIS issued a stakeholder message noting that a significant increase in filings in recent weeks and facility capacity restrictions as a result of the COVID-19 pandemic is causing “significant delays for processing receipt notices” for forms and applications filed with the USCIS Lockbox.

  The USCIS lockbox facilities have received a significant increase in filings in recent weeks. This increase, along with facility capacity restrictions necessary to protect the health and safety of the lockbox workforce during the COVID-19 pandemic, is causing significant delays for processing receipt notices.

  Further details can be found here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 24Apr

  Client Alert: Proclamation Effecting Immigrants Outside the United States

  Uncategorized Comments Off on Client Alert: Proclamation Effecting Immigrants Outside the United States

  The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant who:

  ● Is outside the United States on the effective date of the proclamation;

  ● Does not have a valid immigrant visa on the effective date; and

  ● Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.

  The following categories are exempted from the proclamation:

  1. Lawful permanent residents (LPR)

  2. Individuals and their spouses or children seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)

  3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program

  4. Spouses of U.S. citizens

  5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 orIH-4 visa American Immigration Council AILA Doc. No. 20042201. (Posted 4/22/20)

  6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)

  7. Members of the U.S. Armed Forces and their spouses and children

  8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)

  9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees)

  Discretion. It is within the discretion of the consular officer to determine if an individual is within one of the exempted categories outlined above.

  Nonimmigrant visa (work visa) holders are not included in the proclamation. However, Section 6 the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant (work visa) programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

  Asylum seekers are not included in the ban. The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

  Prioritized Removal. Individuals who circumvent the application of this proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

  Expiration. The proclamation expires 60 days from its effective date and may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

  Severability Clause. If any provision of the proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation shall not be affected.

  Summary of Effect on Employers of Foreign Nationals.

  The Proclamation has a very limited effect at this time on the employment of foreign nationals by employers. It only affects a foreign national who is currently abroad and intends to enter the U.S. as a permanent resident and does not already possess a green card or a valid immigrant visa. However, we must await the issuance of any future executive order or proclamation contemplated by that part of the Proclamation which requires DOL and DHS to review the nonimmigrant (work visa) categories. We will keep you posted!

  We will continue to provide updates as they become available.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 30Mar

  USCIS Expands Flexibility for Responding to USCIS Requests

  USCIS News Comments Off on USCIS Expands Flexibility for Responding to USCIS Requests

  In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced that it adopted measures to assist applicants and petitioners who are responding to certain Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). This alert clarifies that this flexibility also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion.

  Notice/Request/Decision Issuance Date:

  This flexibility applies to an RFE, NOID, NOIR, NOIT or appealable decision within AAO jurisdiction and the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.

  Response Due Date: 

  Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

  USCIS is adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.

  USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection. Please visit uscis.gov/coronavirus for latest facts and other USCIS updates.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 20Mar

  FY 2021 H-1B CAP REGISTRATION IS CLOSED – A Post-Mortem Evaluation

  H-1B Visa News Comments Off on FY 2021 H-1B CAP REGISTRATION IS CLOSED – A Post-Mortem Evaluation

  It’s a year of uncharted waters.  A new on-line registration process for the FY21 H-1B Cap and a viral pandemic that has changed the way we are conducting everyday business.

  Regardless of the havoc that COVID-19 has wreaked on our way of living and conducting business, the USCIS has continued its operations, and the FY21 H-1B cap registrations continued to be filed on-line until the deadline of today, March 20, 2020, at 12:00pm EST.

  While we cannot fully assess the overall utility and success of the new registration process until the results of the lottery are completed and shared, in looking back at the last 20 days, we can say that the on-line platform was largely successful, while saving our clients the expense of preparing and filing full H-1B petitions in order for their candidates to be considered in the H-1B lottery.

  The on-line registration opened on Sunday, March 1, 2020 at 12 noon, EST.  The most notable technological glitch occurred in the completion of the Notice of Representation (Form G-28) where attorneys were forced to choose between submitting the registrations as early as possible due to fear of an overall system crash (which required attorneys to wrongly indicated that they were unauthorized to practice law or under an order of suspension) or exercise patience and wait until the glitch was fixed by USCIS.  The Immigration Law Group at Meyner and Landis chose the latter, which was the correct choice, as after a number of practitioners sounded alarm bells, USCIS rectified the issue within in 3-4 days.

  Overall, the platform functioned well and, for the most part, the interface and process followed the protocols outlined in the webinars conducted by the USCIS prior to opening of the registration period.

  Our primary criticisms with the USCIS Registration platform, while minor, are as follows:

  • Attorneys were able to “Add a Client” but when beginning a registration form, the client name had to be re-entered.  Similarly, once a registration was submitted, if a company added new beneficiaries, there was no pre-population of company information so that all company information had to be re-entered again, increasing the likelihood of typographical errors.
  • The system did not allow employers to modify the “account type” that they had created, so if the employer created the wrong account type, they were forced to open a new account under a different email address.
  • Once the G-28 has been initiated, the registration form became un-editable. If a change needed to be made, the registration had to be deleted and prepared anew.

  Given the fact that there are growing pains with all new processes and all new on-line platforms have technological issues, our overall assessment of the H-1B registration process (pre-lottery results) is positive.

  We will update our assessment once the results of the lottery are posted.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 17Mar

  Client Alert: 30-Day Travel Ban Expanded to Include United Kingdom and Ireland

  Uncategorized Comments Off on Client Alert: 30-Day Travel Ban Expanded to Include United Kingdom and Ireland

  Last week, the U.S. announced a travel ban in response to the Coronavirus pandemic.

  This 30-day travel ban initially applied only to individuals entering the U.S. who have traveled to the 26 countries that make up the European Union, in the past 14 days. These 26 countries include:  Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

  This ban has now been expanded to include the United Kingdom and Ireland.

  The expansion of this ban to include the UK and Ireland is set to begin on Monday March 16th at 11:59 pm. Flights that are in the air from Europe at that time will be permitted to land in the U.S.

  If you are currently a national of the UK or Ireland, and hold a non-immigrant visa (or travel frequently on the visa waiver), and need to be in the United States in the next month, we advise re-entering the United States today if you are currently outside of the U.S.

  If you are a non-immigrant visa holder from Europe, including the UK and Ireland, we also recommend not leaving the United States at this time, as we do anticipate that this ban will be expanded to include more countries, and possibly for a longer period, if the virus continues to spread.

  We will continue to provide updates as they become available.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 12Mar

  30-Day Travel Ban Imposed by Trump Administration Executive Order

  Uncategorized Comments Off on 30-Day Travel Ban Imposed by Trump Administration Executive Order

  In response to the Coronavirus pandemic, the U.S. has announced an Executive Order instituting a 30-day travel ban on foreign nationals entering the U.S. who have traveled to the 26 countries that make up the European Union, within the past 14 days. These 26 countries include:  Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland. This ban does not include the United Kingdom.

  It is not an option to get around the travel ban by transiting through a country that is not part of the travel ban.  Foreign nationals will not be permitted to enter the U.S. if they have been to one of the 26 countries listed above in the past 14 days. While the President stated that “we will be suspending all travel from Europe to the United States for the next 30 days” it is important to note that this ban does NOT apply to U.S. Citizens, permanent residents and their families.[1] Regardless of this exemption, we advise that any immediate family of a U.S. Citizen or permanent resident, who are currently outside the U.S., and holds a nonimmigrant visa or travel permit (advance parole card) return to the United States immediately in order to avoid being separated from your family for at least a month. Read additional details here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 12Feb

  U.S. Citizenship & Immigration Services to Implement Public Charge Inadmissibility Rule

  USCIS News Comments Off on U.S. Citizenship & Immigration Services to Implement Public Charge Inadmissibility Rule

  What is it?

  On August 14, 2019, the U.S. Department of Homeland Security (“DHS”) published the Inadmissibility on Public Charge Grounds rule (“Public Charge Rule”), which codified the public charge grounds of inadmissibility found in the Immigration and Nationality Act (“INA”) at §212(a)(4). INA §212(a)(4) reads in relevant part: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible… In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills.” (Emphasis added)

  Who does it apply to?

  The Public Charge Rule applies to foreign nationals seeking admission to the United States as either immigrants (permanent residents) or nonimmigrants (temporary workers), applicants for adjustment of status to lawful permanent resident status, and foreign nationals in the United States who apply for a change or extension of their nonimmigrant status.

  DHS will only apply the Public Charge Rule to the direct receipt of benefits by a foreign national for their own benefit, or where the foreign national is a listed beneficiary of a public benefit. DHS will also not attribute the receipt of a public benefit by one or more members of the foreign national’s household to the foreign national unless they are also a listed beneficiary of the public benefit. Any income derived from such benefits received by other household members will not be considered as part of the foreign national’s household income.

  The Public Charge Rule does not apply to the following groups: U.S. citizens, even if they are related to the foreign national who is subject to the Public Charge rule; Refugees; Asylees; Afghans and Iraqis with special immigrant visas; Certain  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act; Special immigrant juveniles (“SIJ”); a foreign national (and their spouse and/or children) who received designated public benefits (listed below) who is enlisted in the U.S. armed forces, is serving in active duty, or in any of the Ready Reserve components of the U.S. armed forces; Children, including adopted children, who will acquire U.S. citizenship under INA section 320, 8 USC §1431; or other foreign nationals who DHS has granted a waiver of public charge inadmissibility.

  When does it go into effect?

  On February 24, 2020, U.S Citizenship & Immigration Services (“USCIS”) will implement the Public Charge Rule, except in Illinois, where the rule remains enjoined by a federal court as of January 30, 2020 . The final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

  For full details and a list of forms please click here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 06Feb

  Department of Homeland Security Suspends New Enrollment/Re-Enrollment in CBP Trusted Traveler Programs for New York Residents

  Uncategorized Comments Off on Department of Homeland Security Suspends New Enrollment/Re-Enrollment in CBP Trusted Traveler Programs for New York Residents

  In response to New York State implementing the Driver’s License Access and Privacy Act (Green Light Law), Acting Secretary Chad F. Wolf announced that New York residents will no longer be eligible to apply for or renew their enrollment in certain Trusted Traveler Programs like Global Entry. The law prohibits the Department of Motor Vehicles (DMV) from sharing information with U.S. Department of Homeland Security (DHS), preventing DHS from fully vetting New York residents. The Acting Secretary informed State officials by letter of the change.

  “New York’s ‘Green Light Law’ is ill-conceived and the Department is forced to take this action to ensure the integrity of our Trusted Traveler Programs. It’s very clear: this irresponsible action has consequences,” said Acting Secretary Chad Wolf. “An aspect of the law which I’m most concerned about is that it prohibits the DMV from providing ICE and CBP with important data used in law enforcement, trade, travel, and homeland security. ICE uses the information as they investigate and build cases against terrorists, and criminals who commit child sexual exploitation, human trafficking, and financial crimes. Unfortunately, because of this law, they can no longer do that.” Full text of the DHS letter to the State of New York is available online here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

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