First Circuit Court holds Broad Warrantless Border Phone Search Policy is Lawful
The First Circuit Court, which regulates immigration law in Massachusetts and thus Boston Logan airport, held that searches of cellphones and other electronics devices at the US border (the airport is considered to be a border) do not require a warrant or probable cause and can be used to search for contraband. This means that a traveler does not have an expectation of privacy for the content of their electronic devices, and thus, any information found of the devices can be used against the person in possession of the device.
H-1B VISA REGISTRATION & SELECTION PROCESS FOR FY2022
For the upcoming FY 2022 H-1B cap season, USCIS will continue its random, computerized H-1B cap lottery selection, as the agency has delayed to December 31 the effective date of a regulation that would replace it with a process that allocates H-1B visa numbers according to the Department of Labor’s wage level system.
USCIS will once again use an online registration system to conduct the H-1B cap selection.
USCIS will open the cap registration period on Tuesday, March 9, 2021 at noon EST. Employers can begin to draft and submit cap registrations at this time. The USCIS system will not accept drafts or registrations before March 9.
The registration period will close on Thursday, March 25, 2021 at noon EDT. All registrations for the FY 2022 cap must be submitted by this time. Late registrations will not be accepted.
Employers will be able to include up to 250 beneficiaries in a single registration submission. There is no limit on the number of registrations an employer can submit.
As in past years, USCIS is expected to receive far more H-1B cap registrations than needed to meet the annual quota of 85,000.
USCIS will conduct two lotteries to select enough beneficiaries to meet the 85,000 annual cap. The first lottery will include all registered beneficiaries and will select enough registrations to meet the regular cap of 65,000. The second lottery would include registered U.S. advanced-degree holders who were not chosen in the first lottery, and would select enough registrations to meet the advanced-degree cap exemption of 20,000.
USCIS plans to notify employers and immigration counsel of winning registrations by March 31, 2021.
DHS EXTENDS THE VALIDITY OF TPS AND TPS DOCUMENTATION FOR BENEFICIARIES FROM EL SALVADOR, HAITI, HONDURAS, NEPAL, NICARAGUA & SUDAN
The Department of Homeland Security (DHS) today announced a Federal Register notice extending Temporary Protected Status (TPS) and the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.
The notice automatically extends through Oct. 4, 2021, the validity of Employment Authorization Documents (EADs); Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation) for beneficiaries under the TPS designations for these six countries. The notice also sets forth procedures necessary for nationals of these six countries (or aliens having no nationality who last habitually resided in these countries) to apply for EADs if they wish.
This notice ensures continued compliance with the orders issued by the federal district courts in the Ramos v. Nielsen, Bhattarai v. Nielsen, and Saget v. Trump lawsuits that require DHS to maintain the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, as well as the TPS and TPS-related documentation for eligible affected beneficiaries.
• The TPS designations for El Salvador, Nicaragua, and Sudan will remain in effect, as required by the Ramos district court order, so long as the preliminary injunction remains in effect. Although a panel of the U.S. Court of Appeals for the Ninth Circuit vacated the injunction on Sept. 14, 2020, no directive has been issued to the district court, thus the injunction remains in effect.
• The TPS designation for Haiti will remain in effect, as required by the preliminary injunction orders in both Ramos and Saget, so long as either of those preliminary injunctions remains in effect.
• The TPS designations for Honduras and Nepal will remain in effect so long as the Bhattarai order staying proceedings and approving the parties’ stipulated agreements continues in effect.
Federal Court Rules Against the Elimination of OPT
Judge Reggie B. Walton of the United States District Court for the District of Columbia has issued a summary judgment order upholding the Department of Homeland Security’s post-graduate Optional Practical Training (OPT) programs. The ruling comes in response to a 2016 lawsuit filed by Washington Alliance of Technology Workers (WashTech), which claimed in part that the 2016 STEM OPT rule was issued in excess of DHS’s statutory authority.
A detailed decision outlining Judge Walton’s reasons for ruling in favor of DHS without a full trial will be issued within 60 days. The plaintiffs are expected to appeal.
The case is Washington Alliance of Tech Workers v. U.S. Department of Homeland Security et al. in the U.S. District Court for the District of Columbia.
The district court’s decision is part of a years-long litigation effort spearheaded by WashTech in opposition to OPT programs for foreign graduates.
In 2014, the technology union lodged its first challenge, focusing on the 2008 STEM OPT rule, which provided 17-months of additional practical training to foreign graduates with degrees in science, technology, engineering and math. In that challenge, the district court ruled that DHS had the authority to create the STEM OPT program, but failed to meet its notice and comment obligations when it published the regulation in 2008. Though the court vacated the 2008 rule, it stayed its ruling in order to give DHS time to meets its rulemaking obligations and minimize hardship to F-1 students and employers.
DHS complied with the court's ruling by proposing the current STEM OPT regulation in 2016 and meeting its notice and comment obligations. The new rule, which took effect in May 2016, increased STEM OPT extensions from 17-months to 24-months.
Immediately after the current rule took effect, WashTech filed the latest lawsuit, which has been ongoing for over four years. Though the Trump Administration, which is critical of practical training programs, has defended the 2016 rule in court, the current litigation was bolstered by three trade associations which were permitted to intervene in the lawsuit. Through their filings, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Information Technology Industry Council provided a strong defense of the rule and its promulgation as well as details about how practical trainings programs benefit the U.S. educational system and economy.
The district court’s decision ensures the OPT and STEM OPT programs will remain in place for now. WashTech, however, is expected to appeal the ruling once the full written decision is issued by Judge Walton.
Outside of the litigation, there still remains some threat to practical training programs from the Trump administration. The administration’s Spring Regulatory Agenda reflects plans to propose further restrictions on the OPT and STEM OPT programs by the end of December. However, time is running short on the agency’s ability to finalize a rule by the end of President Trump’s term in office.
Federal District Court Sets Aside New Rules Affecting H-1B Visas
A federal district court in California has set aside two new immigration regulations that were promulgated on a fast track by the Departments of Labor (DOL) and Homeland Security (DHS) in early October. Ruling on summary judgment, the court found that the agencies did not have good cause to bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act. This ruling immediately invalidates the rules; however, the government is expected to appeal the decision in an expedited manner. The case is U.S. Chamber of Commerce et al. v. DHS (20-cv-07331).
The court’s decision comes in response to a lawsuit filed by the U.S. Chamber of Commerce, the National Association of Manufacturers and other trade groups and universities challenging the government’s October 8, 2020 release of DOL and DHS companion rules targeting employment-based immigration, and particularly the H-1B program. The rules were issued as interim final regulations, meaning they could take effect before public comments are considered. The agencies justified expedited review and implementation of the rules on the grounds that a fast track was necessary to support U.S. workers amid the economic impact of the COVID-19 pandemic. The DOL rule took effect immediately on October 8 and the DHS rule was slated to take effect 60 days after publication, on December 7.
The DOL rule restructured the prevailing wage system for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program, resulting in significantly higher government prevailing wage minimums for foreign professional workers. The companion DHS rule, which was set to take effect on December 7, introduced stricter eligibility criteria for H-1B specialty occupations, placed new restrictions on the placement of H-1B workers at third-party worksites, and reinstated evidentiary policies that had been rescinded earlier this year, among other changes.
The court’s ruling is immediately effective, though a speedy government appeal could affect implementation of the decision. It is also unknown what approach DOL may take to the prevailing wage determinations that have been issued since October 8 under the new rule.
Regardless of the outcome of an appeal, agencies could take administrative steps to reissue the regulations in the remaining weeks of the Trump Administration.
USCIS Publishes Video Updating the EB-5 Program
Please see https://www.youtube.com/watch?v=22kv97SDrRg
Public Charge Remains in Place After Seventh Circuit Stays Lower Court Decision
The Seventh Circuit Court of Appeals has put the Department of Homeland Security (DHS) public charge rule back in effect by placing an administrative stay on a November 2 lower court ruling blocking the rule. The case is Cook County et al. v Wolf et al.
On November 2, a federal district court in Illinois vacated the public charge regulation nationwide on the basis that the rule violates the Administrative Procedures Act (APA). DHS appealed the decision quickly and requested the lower court decision be halted while the appeal moves forward. The appeals court granted this request and therefore, U.S. Citizenship and Immigration Services (USCIS) may implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.
What does this mean?
Currently adjustment of status applications and nonimmigrant extension and change of status applications must continue to be submitted with public charge forms and documentation.
Is the issue still being litigated?
The public charge rule is being challenged in several separate ongoing lawsuits. There could continue to be a back and forth on USCIS authority to implement the rule. Further, if the outcome of these lawsuits results in disagreement among Circuit Courts of Appeal on the rule’s legality, the cases may reach the U.S. Supreme Court for a final decision.
Separately, the State Department remains barred from enforcing its public charge regulation, which is applicable to foreign nationals applying for visas from outside of the United States.
PREMIUM PROCESSING FEE HAS INCREASED
Today USCIS announced that it will increase premium processing fees beginning on Monday, October 19, 2020, as included in the Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on September 30, 2020.
Fees will increase from $1,440 to $2,500 for benefit requests that are already eligible for premium processing services through the Form I-907, Request for Premium Processing, except for H-2B and R-1 petitions. Those petitions will see an increase from $1,440 to $1,500.
Any Form I-907 that is postmarked on or after October 19, 2020, must include the new fee amount. Any filings that are postmarked on or after October 19, 2020, that include the incorrect premium processing fee, will see the Form I-907 rejected and the fee returned. Filings sent by courier services such as UPS, Fed Ex, and DHL, the postmark date will be the date included on the courier receipt.
NEW REGULATIONS AFFECTING H-1B VISAS AND PREVAILING WAGES
A new Department of Labor regulation, which took effect October 8, significantly lifts prevailing wages for the H-1B, E-3, H-1B1 and PERM programs.
A second regulation issued by the Department of Homeland Security will tighten the criteria for the H-1B program by revising key H-1B definitions like “specialty occupation,” limiting third-party placement H-1B validity to one year increments, and reimplementing contract and itinerary requirements that had been rescinded earlier this year, among other changes. This rule is to take effect December 7, 2020.
BREAKING NEWS: H, J, & L VISAS ARE AVAILABLE FOR CONSULAR PROCESSING
On October 1, 2020, a Federal Court in California granted a preliminary injunction barring the Department of Homeland Security and the Department of State (US Embassies and Consulates abroad) to refuse processing of all H, J & L visas.
This means that any foreign worker, whose employer was part of the lawsuit, who is currently outside of the US, and seeks a H-2, H-1B, H-4, J-1, J-2, L-1A and L-1B visa can now schedule a nonimmigrant visa appointment at a US Embassy and Consulate, without having to apply for a National Interest Exemption, and obtain a visa (provided the person satisfies all the requirements established by the Immigration and Nationality Act).