On December 31, 2020, the Trump Administration issued Presidential Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market, continuing restrictions on certain work visa and green card issuance through the end of March 2021.  Citing improved but still persistent unemployment figures caused by COVID-19, the new Proclamation extended two prior executive actions that have limited employers’ ability to sponsor foreign workers for residency and work in the United States:

  • Presidential Proclamation 10014, which suspended the issuance of new immigrant visas to applicants who were outside the United States as of April 24, 2020, and
  • Presidential Proclamation 10052, which, as reported here, suspended new H-1B, L-1, H-2B, and certain J-1 visa issuance for individuals who were outside the United States as of June 23, 2020; were not in possession of a nonimmigrant visa on that date; and have no other authorization to travel to the United States, such as a transportation letter, an appropriate boarding foil, or an advance parole authorization. The Department of State (DOS) has confirmed that the ban does not prohibit visa applications and travel into the United States by H-1B and L-1 nonimmigrants who are resuming “ongoing employment in the United States in the same position with the same employer and visa classification.”

Continue Reading Trump Administration Extends Bans on Issuing Certain Work Visas and Green Cards Until March 31, 2021

The Japanese government announced this weekend that it will be suspending foreign entry into Japan (with certain exceptions) from December 28, 2020 until the end of January 2021. The blanket ban is a precaution against a new and potentially more contagious coronavirus variant that has spread across Britain.   See Mayer Brown’s coverage of the ban on our COVID-19 Blog.

Over the weekend, countries across Europe announced travel bans on the United Kingdom, with the growing list of countries spanning all other regions of the globe.  The restrictions come in the wake of the discovery of a new (and possibly highly transmissible) COVID-19 strain in the United Kingdom, coupled with the UK prime minister’s Saturday announcement of the strictest domestic movement restrictions to-date, including a new Tier 4 “stay at home” level alert for parts of England (encompassing London).  Similar cases of the mutated virus have appeared in Australia, Denmark, and the Netherlands, while a new strain, different from that discovered in the United Kingdom, has been identified in South Africa. Continue reading here.

The Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) has extended a temporary policy allowing employers to conduct remote reviews of I-9 supporting documentation until December 31, 2020. The extension provides employers ongoing flexibility with regards to I-9 verification processes in light of the continued impacts of the COVID-19 pandemic.

Although employers may continue to inspect verification documents by fax, video, or email, physical inspection will still need to be completed within three business days of the policy’s termination or once normal business operations resume, which comes first.

U.S. Citizenship and Immigration Services (USCIS) also announced that it would continue to allow individuals to present, and employers to accept, the approval notice (Form I-797, Notice of Action) of an EAD, as a List C document establishing work authorization through February 1, 2021.

For a more detailed analysis of the policy, please review our prior blog posts on the original policy announcement and most recent extension.

This afternoon, the US District Court for the Northern District of California set aside two rules issued by the Trump administration pertaining to employer sponsorship of H-1B workers, both of which bypassed notice-and-comment rulemaking as required by the Administrative Procedures Act (“APA”):

  • The Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule, by which the Department of Labor increased the wages employers were required to pay to H-1B workers by 43 to 71% as of October 8, 2020 (the “DOL Rule”), when the rule took effect;
  • The Strengthening the H-1B Program rule, by which the Department of Homeland Security would have severely restricted the definition of who would be eligible for H-1B status and imposed limitations on duration of H-1B status for those employed by large IT staffing companies (the “DHS Rule”), had the rule taken effect on December 7, 2020 as planned.

Together, these rules represented the most substantial shift in eligibility, wage levels, and third-party worksite supervision of H-1B workers in the past 30 years.

Judge Jeffrey S. White granted partial summary judgment in Chamber of Commerce of the United States of America, et al., v. US Department of Homeland Security, et al (Case No. 4:20-cv-7331-JSW), ruling in favor of the plaintiffs, which included the US Chamber of Commerce, the National Association of Manufacturers, and the other plaintiffs from the business and academic sectors.  The court concluded that the government “failed to show there was good cause” to implement the two rules.  Echoing themes presented by the plaintiffs and amici, including amici represented by Mayer Brown, the court concluded:

The COVID-19 pandemic has wreaked havoc on the nation’s health, and millions of Americans have been impacted financially by restrictions imposed on businesses, large and small, during the pandemic; the consequences of those restrictions has been a fiscal calamity for many individuals. However, “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.  The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching thoughtful, rational civic discourse.”  Arizona v. United States, 567 U.S. 387, 41 (2012).

The court’s order mandates that the relevant administrative agencies set aside the DOL Rule and DHS Rule and revert to previously established standards for reviewing H-1B eligibility and the wages required to be paid to H-1B workers.  We expect the agencies to signal their intent to appeal the court’s decision and for the DOL to confirm when it will revert to prior wage standards shortly.

 

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The US Supreme Court Building columns with the words Equal Justice Under Law on the building.

A California federal court granted class certification to businesses accusing the US government of unlawfully rejecting market research analysts’ H-1B visa petitions, certifying a nationwide class of employers who say US Citizenship and Immigration Services systematically misreads the US Department of Labor’s definition of a market research analyst to mean that the position doesn’t qualify as a specialty occupation. Due to the pendency of a newly announced USCIS  interim final rule narrowing the definition of a “specialty occupation” when evaluating H-1B visa applications to those with narrowed degree requirements, U.S. Magistrate Judge Susan van Keulen limited to companies that file visa petitions between January 1, 2019, and December 6, 2020, as the rule is slated to take effect December 7, 2020.  If the interim final rule, which is the subject of several lawsuits, is enjoined, plaintiffs have indicated they intend to request expansion of the class to encompass petitions filed as of December 7.

The class action represents the latest challenge to attempts by USCIS to narrow the definition of specialty occupation to exclude blanket occupations, where, as in the case of market research analysts, the government indicates that a degree in a narrow subspecialty is not “normally” required by employers.  Continue Reading Newly-Certified Class Represents Latest Challenge to USCIS’s Blanket Repudiation of Occupation As H-1B Specialty

The UK Government has released a Statement of Changes in Immigration Rules, detailing new provisions related to the country’s Post-Brexit immigration system. Although the new system will go into effect on January 1, 2021, the Statement confirms that new applications under the Points-Based Immigration System (PBIS) will be accepted beginning December 1, 2020. For a detailed review of the Post-Brexit PBIS, please visit our blog post here.

The October 22 Statement codifies and establishes a legal framework for the immigration policies that have been published over the past several months. As discussed in our previous blog posts, freedom of movement between the European Union and the United Kingdom will end on January 1, and all non-UK nationals, with few exceptions, will be subject to the new immigration rules. Irish citizens, for example, will have the right to enter, reside, live, and work in the United Kingdom without obtaining permission and without restrictions on their stay.

The new system is intended to simplify the United Kingdom’s immigration rules, level the playing field for the immigration of all nationalities, and make the UK immigration system generally more accessible and transparent. In doing so, the Statement presents a series of appendices that describe the requirements for each immigration category. The following sections provide details on a number of key provisions included in the Statement.

I.    The Skilled Worker Route.

As of December 1, 2020, the Tier 2 (General) Route will be discontinued, and the UK Government will begin accepting applications through the new Skilled Worker Route. Individuals who have previously obtained entry clearance or permission to stay through the Tier 2 (General) Route and are seeking to extend their status can apply for further leave or settlement through the Skilled Worker Route.   More details on this route and the PBIS can be found in our previous blog post.

The Skilled Worker Route sits at the center of the new PBIS, effectively replacing the current Tier 2 (General) Route. This route is available for all prospective workers that are outside of the UK resident labor market who are seeking employment in the United Kingdom as “skilled workers.” UK employers seeking to hire these workers must obtain a sponsor license from the Home Office.

II.   The Intra-Company Routes.

Current requirements for graduate trainees will remain largely intact. However, the new rules have made several significant changes to the previous ICT Routes. The new system removes the twelve-month re-entry bar (cooling off period) for ICT visa holders who have departed the United Kingdom. These individuals will instead be afforded ICT leave for up to five years in any six-year rolling period or up to nine years in any ten-year period for high earners. High earners will be exempt from the twelve-month employment requirement prior to entering the United States and will also be able to “switch” into the ICT Route after already entering the United Kingdom under another route. The salary threshold for high earners will also be reduced to £73,900.

The statement establishes two Intra-Company Routes, replacing the Tier 2 (ICT) Routes: the Intra-Company Transfer (ICT) Route and the Intra-Company Graduate Trainee Route. The ICT Route remains available to “established workers who are being transferred by the business they work for to do a skilled role” in the United Kingdom. The Intra-Company Graduate Trainee Route is for workers being transferred to the United Kingdom as part of a structured graduate training program.

III.   Hong Kong British National Overseas Route.

The Hong Kong British National Overseas (BN(O)) Route is for BN(O) citizens who are “ordinarily resident in Hong Kong or the United Kingdom” as well as their dependent partners and children. Individuals applying for entry clearance through this route must be ordinarily resident in Hong Kong at the date of the application. This route grants permission to the applicant for a period of either thirty months or five years, allows for work and study in the United Kingdom, and serves as a route to settlement.

IV.   Changes to the Results of Evidenced Criminality.

The new rules require the refusal of applications for entry clearance, permission to enter, or permission to stay for applicants with certain criminal backgrounds. These instances include applicants who (1) have been convicted of a criminal offense for which they received a custodial sentence of twelve months or more, (2) are “persistent offenders,” or (3) have committed a criminal offense that caused “serious harm.” The new rules also require the cancellation of granted permissions for individuals with any of these backgrounds. For lesser offenses than those above, individuals may also be discretionarily refused entry clearance, permission to enter, or permission to stay, and existing entry clearance or permission may be discretionarily cancelled as well.

V.   Additional Information for Employers.

As the Home Office will be publishing additional guidance regarding the administration of the new immigration rules, please continue to follow our updates on or blog, The Mobile Workforce.

As our previous blog post mentions, employers who will be required to secure a sponsorship license from the Home Office should begin preparing those applications as soon as possible. The UK Government has implemented an option for expediting these applications that will become available on November 12, 2020. Employers seeking to leverage the expedited option will be required to pay an additional £500 expedited processing fee along with the application fee.

 

After the normalization of ties between the UAE and Israel through the announced peace agreement – dubbed the “Abraham Accord” – on August 13, 2020, the two countries have now agreed to establish a visa waiver program for their citizens.  The program will allow the citizens of each country to visit the other without going through a visa application process.  This program marks the UAE as the first country in the Middle East to allow visa-free travel with Israel.

 In that spirit, Etihad Airways, Abu Dhabi’s flagship airline based out of the UAE capital, announced earlier this week that a total of twenty-eight weekly flights are expected to operate between the UAE and Israel.  The first commercial flight to Israel landed at Ben Gurion International Airport in Tel Aviv on October 19, 2020, and is expected to return to Abu Dhabi later in the week.

 The two countries also agreed to establish a US$3 Billion “Abraham Fund” to promote economic cooperation and development in the region.  The fund is expected to sponsor investment project opportunities and aims to improve agriculture productivity in the Middle East in cooperation between the two countries.

 Mayer Brown’s Middle East and Global Mobility practices continue to monitor these important developments in the region.  Please see our alert from September 2020 on the Abraham Accord:

 

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One of the top 10 issues affecting US immigration in the next 100 days will depend on the outcome of lawsuits challenging an overhaul of the eligibility, wage levels, and employment rules for the H-1B visa category, which governs the hiring of highly-skilled workers by US employers across industries. Today a leading group of business associations, including the US Chamber of Commerce, National Association of Manufacturers, Bay Area Council, and National Retail Federation, as well as number of educational institutions and associations, filed a lawsuit in the Northern District of California against the Departments of Homeland Security (DHS) and Labor (DOL) challenging the Strengthening the H-1B Program rule and the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule. The suit was filed in the Northern District of California.

Continue reading on Mayer Brown’s COVID-19 Response Blog.

The deadline for Person of Indian Origin (PIO) cardholders to apply for Overseas Citizen of India (OCI) cards at Indian Consulates around the world is now December 31, 2021, extending the previous deadline of September 30, 2020. Applications are typically processed within four to five business days. However, PIO cardholders are urged to register for their OCI cards as soon as possible.

In 2015, the Indian government merged its PIO and OCI programs. Although all PIO cardholders are considered OCI cardholders in the eyes of the Indian government, PIO cardholders were advised to apply for machine-readable OCI cards to continue cross-border travel. After the new deadline, PIO cards will be invalid and cardholders who have not applied for their OCI cards may be required to obtain a visa or exit permit to travel across India’s borders.

Additionally, the Bureau of Immigration will now accept as a valid travel document all PIO cards, along with a valid foreign passport, until the new deadline. During the interim, if the International Civil Aviation Organization invalidates handwritten PIO cards, PIO cardholders may be required to obtain an appropriate visa from a relevant Indian Mission or Immigration Check Post in order to travel to India.

Information and guidance on the process of converting PIO cards to OCI cards can be found here.