This alert summarizes a number of important developments affecting business immigration that occurred last week, including a number of federal court decisions enjoining certain presidential and regulatory actions, as well as legislation passed by Congress.
The US District Court for the Northern District of California issued on October 1 a nationwide injunction that prevents the US Departments of State and Homeland Security from enforcing Section 2 of Presidential Proclamation 10052, which we reported on in our Alert of June 23, and which denied admission and visa issuance in H-1B, L-1, J-1, and H-2B status until December 31, 2020, to certain persons who were outside the United States on June 24, 2020, and did not hold valid visas in these classifications on this date. The injunction is effective immediately and will remain in place unless and until it is overruled by an appellate court. It is likely that the administration will shortly file a challenge to this injunction in a federal circuit court.
It should be noted that the injunction applies only to the plaintiffs in this litigation and not to all persons subject to Presidential Proclamation 10052. The plaintiffs are the United States Chamber of Commerce, the National Association of Manufacturers (NAM), the National Retail Foundation, Technology Net (TechNet), and Intrax, Inc. Only members of one or more of these organizations may benefit from the injunction; Presidential Proclamation 10052 will continue to apply to entities and persons that are not members of these organizations. A company or other entity seeking to employ a person in H-1B, L-1, J-1, or H-2B status that is a member of one of these organizations may no longer have the admission of the employee, or the issuance of a visa to the employee, denied on the basis of Presidential Proclamation 10052. Restrictions on admission or visa issuance based on the coronavirus (COVID-19) pandemic and thus unrelated to Presidential Proclamation 10052 will continue to be in effect, however, and may delay or complicate the admission and visa issuance processes. Organizations wishing to file visa applications for persons subject to Presidential Proclamation 10052 may wish to consider obtaining a membership in one of the entities listed above in order to become exempt from the proclamation and avoid having to seek a National Interest exemption.
The same federal court and judge that enjoined Presidential Proclamation 10052 have issued an injunction barring the Department of Homeland Security from implementing a rule that would have significantly increased a number of US Citizenship and Immigration Services (USCIS) filing fees for certain petitions and applications, as well as introducing new forms for these filings. The rule would have become effective on October 2, 2020, and would also have lengthened the Premium Processing adjudication period for certain petitions from 15 calendar days to 15 business days, imposed new fees for asylum applications and Deferred Action for Childhood Arrival (DACA) applications, and obligated employers with a certain threshold of employees in H-1B and L-1 status to pay additional fees.
The practical effect of this injunction is that all USCIS fees and forms in place before October 2, 2020, will continue to be in effect. These fees apply to all I-140 petitions and adjustment of status applications filed to benefit from the cutoff date movement that was announced in the October Visa Bulletin issued by the State Department. The fees for these filings will continue to be $700 and $1,225, respectively, and not the $555 (a decrease) and $2,270 (for a “bundled” adjustment application that the rule would have required.) The USCIS has confirmed on its website that it will continue to accept the fees charged before the proposed increase. The current Premium Processing timeframe of 15 calendar days will also remain in place.
The injunction is effective immediately on a nationwide basis, although the Department of Homeland Security is likely to challenge the injunction in an appellate court.
An appropriations bill was signed into law on September 30 to provide funding to the federal government through December 11, 2020. The bill included a number of provisions to reform the USCIS’s Premium Processing Service, which reduces the adjudication timeframe for certain petitions filed on Forms I-129 and I-140 to 15 calendar days for the payment of a $1,440 fee. The new law does not increase the 15-calendar-day adjudication timeframe, but does introduce a number of significant changes to the Premium Processing service, including the following:
The new law also limits the USCIS’s ability to suspend Premium Processing (which it has done repeatedly in the past for often unconvincing reasons) and requires the agency to provide enhanced case status information and communication about petitions and applications filed under Premium Processing. The law is effective immediately, but additional action is required on the part of the USCIS to implement the reforms to the Premium Processing service. Until such action is announced, employers requesting Premium Processing should do so under existing USCIS guidelines.
The USCIS has been developing a regulation for some time that would significantly restrict or “strengthen” the H-1B Specialty Occupation category. Based on a number of reports, the regulation would redefine the concept of a specialty occupation to reduce the number of occupations that qualify, create a new and more rigorous standard for establishing an employer/employee relationship, and impose new wage obligations on employers of H-1B nonimmigrants. The regulation is likely to published as an Interim Final Rule, which means that it would be effective immediately. Although the website of the Office of Management and Budget indicated that the proposed regulation had been “withdrawn,” it appears that the Office of Information and Regulatory Affairs has waived its preliminary review of the rule, which is communicated as a withdrawal on the website. The Department of Homeland Security has indicated that the rule continues to move forward as a “priority rulemaking item.” The proposed rule thus remains active and is likely to be published soon and, as noted above, to be effective immediately. When the regulation is published, we will issue a detailed analysis of its provisions and its effect on the ability of employers to employ persons in H-1B status.
The Department of Homeland Security has announced that it plans to issue a Proposed Rule that would increase the burden on a person filing an affidavit of support to strengthen an application by a foreign national for permanent residence. The rule will require US citizens and permanent residents who sponsor an immigrant by submitting a Form I-864 or Form I-864EZ Affidavit of Support to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to demonstrate they can maintain the required resources. Under the proposed rule, any such sponsor who has received means-tested public benefits within the 36 months before submitting an Affidavit of Support, or has defaulted on a previous commitment to support an immigrant, must be accompanied by a joint sponsor who has received no such public benefits.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Laura C. Garvin