The US Supreme Court has declined to consider a lawsuit that sought to eliminate a work authorization program widely utilized by foreign graduates of US universities. The Supreme Court’s denial of a writ of certiorari ensures that foreign graduates may continue working through the Department of Homeland Security’s Optional Practical Training (OPT) program, eliminating a
Elizabeth Espín Stern, a partner in Mayer Brown's Washington DC office, leads the firm’s Global Mobility & Migration practice, which forms part of the Employment & Benefits group. She is a seasoned veteran, advising on US and global immigration, HR and mobility services. She is consistently ranked as a leading business immigration lawyer by Chambers Global, Chambers USA, Who's Who Legal, The International Who's Who of Business Lawyers, and national and local publications. In addition, she has been named in Best Lawyers in America, Super Lawyers and "Women in Law Awards 2014" by Lawyer Monthly and named one of National Law Journal’s “Outstanding Women Lawyers 2015.” She spearheads Mayer Brown's new global worksite management initiative. This "Global People Solution" offers multinational clients, in a variety of sectors including financial services, IT, defense, telecommunications and multimedia, a comprehensive compliance and risk management program in connection with their mobile workforce. Liz regularly speaks and writes about immigration policies and contributes to major news agencies and publications, including Law 360, Quartz.com, Global Business News and a host of global HR publications.
On October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a widely anticipated ruling upholding a district court’s determination that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. The decision has no immediate impact on current DACA recipients or their employers, as the three-judge panel stayed its decision pending further review by the district court. In particular, the district court must review a new DACA regulation published by the Department of Homeland Security (DHS) that is set to go into effect on October 31, 2022. The Biden Administration had crafted this new regulation to address the procedural concerns raised by the district court in its earlier ruling against the DACA program.
On October 14, 2022, the district court judge held a status hearing and ruled that the current version of the federal policy can continue, at least temporarily, with the limitations that are presently in place. The judge confirmed that the injunction preventing the government from adjudicating first-time requests for DACA applies to the new regulation. Thus, the new regulation will not take effect on October 31, 2022, for initial applications. The judge ordered attorneys for the federal government to provide more information on the new rule.Continue Reading DACA Developments: Vital Information for Employers and Employees
What’s the State of Play Today?
- Low unemployment rates and a shortage of STEM talent continue to drive visa sponsorship of foreign workers by US employers.
- H-1B visas have a ceiling of six years, unless workers are sponsored by their employers for “green cards” early in the process (typically by year four).
- Many employers, particularly in the tech arena, are offering foreign workers “green card” sponsorship as of the start date with the company as a recruitment incentive.
- Companies sponsoring workers for employment-based green cards are required to show as part of the application process that they couldn’t find any qualified American workers to fill the job, a job market testing program known as “PERM” sponsorship.
- A major technology company agreed on October 19, 2021 to pay a financial penalty of up to $14.25 million, which includes $4.75 million to the US government and up to $9.5 million to eligible victims of alleged discrimination.
- The government’s suit claimed that the company had illegally reserved jobs for foreign workers it was sponsoring for permanent residence instead of searching for and considering available US workers.
- The Department of Justice complaint alleged that the company improperly deviated from normal recruiting standards by requiring applications for PERM-sponsored roles to be mailed to the company rather than, as was the standard practice for general recruiting, submitted online.
- The complaint further alleged that the company did not post these positions on its careers website, as was its standard practice for general recruiting, which appeared to result in very low numbers of US worker applications for the PERM roles.
- The Department of Labor (DOL) also executed a settlement with the company based on its audit of certain of the company’s pending PERM applications, in which the company agreed to engage in additional notice and recruitment for US workers and as a result of which the company will face ongoing audits by DOL.
- As part of the settlements, the government will monitor the company’s PERM program for the next three years, and DOL will conduct additional audits of the company’s PERM filings.
Several news outlets, including Reuters, AP and NBC, are reporting that a condition of reopening travel to the United States may include vaccination against the SARS-COV-2 virus that causes COVID-19. These reports come only ten days after the White House confirmed that the travel bans currently in place for travelers from 33 countries will remain…
Earlier today, April 30, 2021, the White House press secretary Jen Psaki announced that the United States will restrict travel from India starting on Tuesday, May 4, in response to the surge of coronavirus cases and variants being observed in the country. “The policy will be implemented in light of extraordinarily high COVID-19 caseloads and multiple variants circulating in India,” said Psaki.
Continue Reading United States to Restrict Travel From India Amid Record Numbers of Coronavirus Infections and Fatalities
On April 26, 2021, the Secretary of State made a national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamations (PPs) 9984, 9992, and 10143 related to the spread of COVID-19. As a result of this determination, national interest exceptions (NIEs) from the regional COVID-19 travel bans in effect for Brazil, China, Iran, and South Africa now align with those already in place for the regional bans barring travel from Ireland, the United Kingdom, and the Schengen Area.
Continue Reading National Interest Exceptions to COVID-19 Travel Bans from Brazil, China, Iran and South Africa Aligned to Standards in Place for Schengen, UK, and Ireland
US Citizenship & Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts. With this update, USCIS is reverting in substance to prior…
On Tuesday, March 30, 2021, US Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of H-1B registrations through its new electronic registration system needed to reach the annual cap, which includes registrations for both the 65,000 regular cap, as well as the 20,000 allotted US advanced degree exemption (or “master’s cap”).
USCIS states in its announcement that the lottery selection process is complete and that the Agency has notified all prospective petitioners if their registrations have been selected, meaning employers are eligible to file a FY2022 H-1B cap-subject petition on behalf of the employees for whom selection notices have been assigned.Continue Reading USCIS Announces H-1B FY2022 Lottery Selection Complete, Selected Petitioners Notified
Nearly half of the executive orders signed by President Biden on his first day in office reverse the immigration policies of the Trump administration. The Biden administration’s actions included reversing the ban on visa issuance and travel from Muslim-majority countries, placing an immediate pause on funding construction of a wall along the country’s southern border, and requiring testing negative for COVID-19 to enter the United States. The new administration’s swift action underscores the priority placed on immigration policy, as forecasted here. We outline each executive order signed, with plans to further address the executive actions most critical to employers and businesses.
Continue Reading President Biden’s First Executive Orders Focus on Reversing Trump Administration Policies
The White House decreed on Monday, January 18, that the entry bans on most of the European Union, the United Kingdom, and Brazil would end as early as January 26, just six days after Mr. Biden takes office, citing the decision last week by the administration to require international travelers to present either the results…