Navigating the Form I-9 for TPS and DED: Complex Verification Requirements

Over the past three months, the Biden administration has expanded immigration benefits for foreign nationals on humanitarian grounds. Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) are two such humanitarian benefits that permit certain foreign nationals to live and work in the United States with government-issued employment authorization documents.

Biden Administration’s Current U.S. Travel Restrictions and Revised National Interest Exception Criteria

The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.

U.S./Mexico/Canada COVID-19 Travel Update: Biden Administration Extends Border Restrictions Through April 21, 2021

On March 18, 2021, the Biden administration extended ongoing travel restrictions along the United States-Canada and United States-Mexico land ports of entry through April 21, 2021. The restrictions, which were previously set to expire on March 21, 2021, prohibit all “non-essential” travel from entering the United States to prevent the spread of COVID-19. These restrictions have been in effect since March 21, 2020.

USCIS Completes FY 2022 H-1B Selection Process

On March 30, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it had completed the initial H-1B regular cap and master’s cap selection process for fiscal year (FY) 2022. This is the second year that USCIS has used an electronic preregistration system to conduct the random selection lottery. According to the agency’s press release, USCIS has sent notifications to registrant employers and their representatives about selection results.

USCIS Provides Filing Flexibility for International Student OPT Work Authorization Applications Affected by Service Delays

On February 26, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it was offering additional flexibility for international students affected by the delayed issuance of receipt notices for Form I-765, Application for Employment Authorization. USCIS had previously acknowledged that it was “experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility,” and, in particular, “significant delays” for Form I-765 applications relating to F-1 students.

USCIS Announces Deadline to Download E-Verify Data

Pursuant to the National Archives and Records Administration (NARA) records retention and disposal schedule (N 1-55-08-7), U.S. Citizenship and Immigration Services (USCIS) annually purges E-Verify data that is more than 10 years old. According to USCIS, as of May 14, 2021, employers will no longer have access to E-Verify records that were created on or before December 31, 2010.

Biden Administration Introduces ‘U.S. Citizenship Act’ Immigration Bill in Congress

On February 18, 2021, the Biden administration formally introduced a new immigration bill in Congress—the U.S. Citizenship Act of 2021. The bill, marshaled by Representative Linda Sanchez (D-CA) and Senator Robert Menendez (D-NJ), includes provisions that would impact all aspects of what the administration considers a broken immigration system.

The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

FY2022 H-1B Cap Update: USCIS Confirms Registration Details, Delays Wage-Based Selection Process

U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions subject to the annual quota for fiscal year (FY) 2022 on or shortly after April 1, 2021. USCIS has confirmed it will use the same preregistration system introduced for last year’s lottery and will accept registrations starting on March 9, 2021. The registration window will close at noon eastern standard time (EST) on March 25, 2021. Importantly, the U.S. Department of Homeland Security (DHS) has confirmed it will delay the effective date of the new H-1B selection final rule until December 31, 2021.

President Biden Revokes ‘Buy American and Hire American’ Executive Order

On January 25, 2021, President Joe Biden signed Executive Order (EO) 14005 entitled “Ensuring the Future Is Made in All of America by All of America’s Workers,” which directs federal government agencies to “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” While this order directs all agencies to follow this policy via the federal procurement and budgetary process, it also revoked the “Buy American and Hire American” executive order (EO 13788), which President Trump signed on April 18, 2017.

DHS Withdraws Proposed Rule to Rescind H-4 Work Authorization Program

On January 25, 2021, the U.S. Department of Homeland Security (DHS) withdrew its proposed rule that sought to eliminate the H-4 employment authorization document (EAD) program for eligible spouses of H-1B workers. The now-withdrawn rule, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” was proposed and submitted to the Office of Information and Regulatory Affairs (OIRA) on February 20, 2019, largely in response to President Trump’s Buy American and Hire American Executive Order, which had emphasized the former administration’s focus on protecting American workers.

DOL Delays Implementation of Updated OES Wage Rule

On February 1, 2021, the U.S. Department of Labor (DOL) formally proposed delaying the implementation of its final rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” This rule was scheduled to go into effect on March 15, 2021. The rule, which was published during the last days of the Trump administration, was an updated version of the rule originally published as an interim final rule on October 8, 2020.

Biden Administration Reinstates COVID-19 Travel Restrictions for Europe and Brazil, Adds Restrictions for South Africa

On January 25, 2021, President Joseph R. Biden Jr. issued a proclamation reinstating COVID-19 entry restrictions for travelers from Brazil, the United Kingdom, Ireland, and the 26 countries that comprise the Schengen Area of Europe. The proclamation also adds South Africa to the list of countries subject to travel restrictions.

A Glimpse Into Biden’s Immigration Policies: The U.S. Citizenship Act of 2021

On January 20, 2021, Joseph R. Biden, Jr. was sworn into office as the 46th president of the United States. With this change in administration, it is expected that sweeping policy reviews and changes will be forthcoming. The acts of a president over the first few days and weeks of the new administration are seen as an indicator of the priorities and the intentions of that new administration. The Biden administration is no different. President Biden has expressed his intention to pursue a host of policy and regulatory changes over the first 100 days of the administration.

On Day One of the Biden Administration, a Flurry of Executive Orders

Joseph R. Biden Jr. was sworn in as the 46th president of the United States on January 20, 2021. President Biden hit the ground running, issuing 17 executive orders, proclamations, memoranda, and similar actions on his first day. Many of these presidential actions have impacts that go beyond the day-to-day activities of the workplace, but employers may still want to have an understanding of these policy changes. Set forth below is a summary of the actions that President Biden took on his first day in office.

Biden Administration Business Immigration Changes: What to Expect for Employers

On January 20, 2021, President Joseph R. Biden Jr. demonstrated he will pursue a broad immigration reform agenda. The new administration has proposed comprehensive legislation to Congress that aims to create a path to citizenship for millions of undocumented immigrants living in the United States, including so-called “Dreamers” who were brought to this country as children, as well as eliminate green card quotas, reducing lengthy backlogs and improving efficiency for work visa programs. From a business immigration perspective, the proposed efficiency improvements include clearing employment-based green card backlogs and exempting STEM degree holders from green card quotas. It is important to note that this legislative proposal must first pass the U.S. House of Representatives and the U.S. Senate before being signed into law and does not address high-skilled worker visas such as H-1Bs or L-1s.

Rulemaking Redux: DOL Issues Updated Final Rule Adjusting Wage-Level Calculations for H-1B, H-1B1, and E-3 Visa and PERM Cases

On January 12, 2021, the U.S. Department of Labor (DOL) announced an updated final rule designed to increase prevailing wages required for certain visa processes. The updated rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” is the DOL’s second attempt in recent months to revise how the existing four-tiered wage structure of the Occupational Employment Statistics (OES) wage survey is calculated for purposes of determining prevailing wages.

DHS Announces Significant Changes to H-1B Cap Selection Process

On January 8, 2021, the U.S. Department of Homeland Security (DHS) published a final rule that significantly alters the longstanding randomized lottery process that U.S. Citizenship and Immigration Services (USCIS) has utilized to select H-1B cap-based petitions.

Trump Administration Extends Visa Bans to March 31, 2021

On December 31, 2020, the Trump administration issued a presidential proclamation extending the ban of entry for certain nonimmigrant and immigrant visas as outlined in its April 22, 2020, and June 22, 2020, proclamations. The ban includes certain applications for H-1B, H-2B, J-1, and L-1 visas for persons who were not present in the United States as of the effective date of the proclamation, as well as all applications for immigrant visa holders.

District Court Invalidates New DOL Wage Regulations for a Third Time in December 2020

On December 14, 2020, the U.S. District Court for the District of Columbia granted a motion for partial summary judgment in favor of the plaintiffs to invalidate recent regulations from the U.S. Department of Labor (DOL), which dramatically increased the prevailing wage methodology that is commonly used for various types of immigration applications. This ruling is the third such loss for the agency in December 2020.