Effective April 1, 2021, the US Department of Homeland Security (DHS) has again extended its remote I-9 verification policy that defers the physical presence requirements of the employment verification process. Under a policy first introduced on March 20, 2020, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only
H-1B Wage Rule Delayed
Yesterday, the DOL announced that, consistent with the Biden administration’s regulatory freeze, it will delay the application of a last-minute Trump Administration order meant to revise the computation of prevailing wages employers are required to pay H-1B, H-1B1, and E-3 visa holders. The new effective date of the regulation is May 14, 2021. In the interim, the DOL will open a 15-day comment period starting on February 1st, with a subsequent 60-day review period.
If it goes into effect, the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States rule would have a significant impact on sectors that rely on foreign workers, including the tech industry. While the Biden administration has signaled its intent to reverse the Trump administration’s H-1B policies, it is not clear that this regulation will be withdrawn. The Biden administration has expressed an interest to reform the temporary visa system so that “they are aligned with the labor market and not used to undermine wages.”…
Continue Reading H-1B Wage Rule Delayed, Secretary Blinken Confirmed at State, and DHS Nominee Mayorkas Reportedly to be Filibustered
In likely its last “midnight rule,” the Department of Homeland Security (DHS) plans to publish a more limited version of its Strengthening the H-1B Nonimmigrant Visa Classification Final Rule (the “Final Rule”). With the twin goals of aligning the H-1B regulations with the Immigration and Nationality Act and improving the integrity of the H-1B program, the Final Rule targets employers who assign H-1B workers to third-party worksites, requiring those employers to establish a valid “employer-employee” relationship. …
Continue Reading Trump Administration Poised to Publish a More Limited H-1B Rule Before Inauguration Day
On April 22, 2019, the Department of State published a final rule setting out procedures that allow consular officers to discontinue granting visas to nationals of a country subject to sanctions under § 243(d) of the Immigration and Nationality Act.
Section 243(d) provides that—when notified by the Secretary of Homeland Security that a foreign country government has denied or unreasonably delayed accepting an alien who is the citizen, subject, national, or resident of that country and is subject to a final order of removal from the United States— the Secretary of State shall order consular officers in that foreign country to “discontinue granting” immigrant visas, nonimmigrant visas, or both to citizens, subjects, nationals, or residents in that country. The Secretary of State imposes these visa sanctions by issuing an order to consular officers that describes the category or categories of visas and applicants subject to discontinuation of visa grants.
The White House appears to be eyeing the former head of a well-known anti-immigration group, the Federation for American Immigration Reform, Julie Kirchner, to take the helm of US Citizenship & Immigration Services, the agency within the Department of Homeland Security charged with administering immigration and naturalization benefits. Kirchner, who joined the administration shortly after the president took office, currently serves as USCIS Ombudsman, the office tasked with resolving complex individual case issues, as well as providing recommendations for improvement in the administration of overall case processing.
Continue Reading DHS Shake-Up May Lead to Change in USCIS Leadership
Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April. This year, employers must also monitor for potential regulatory changes to the filing process. On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.” The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings. While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.
The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.
US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association. The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:
As anticipated by an earlier blog post, and after a couple of months of internal planning, USCIS is ready to announce its implementation plan related to the agency’s new Notice to Appear (NTA) policy guidance. On Thursday, September 27, Mayer Brown’s Global Mobility and Migration practice will eagerly join a live USCIS teleconference entitled…
In light of recent news regarding data breaches affecting Facebook users, data-mining apps are not the only entities monitoring social media use these days.
Last fall, the Department of Homeland Security expanded its digital monitoring policy in the Federal Register to include immigrant “social media handles, aliases, associated identifiable information, and search results”. While DHS describes the announcement as a policy clarification rather than a policy change, the news escalates the debate concerning government use of social media and the tension between privacy rights, free speech, and public safety. Concurrently, DHS issued broader access to public-source data in concert with the intelligence community. Whereas these 2017 adoptions indicate recent change, DHS has instituted new practices in the digital domain over the last two decades. For instance, the Department began to evaluate social media more closely in the aftermath of the 2015 San Bernardino mass shooting by two attackers who had exchanged private online messages, and added optional requests for social media use under the Visa Waiver Program in late 2016.