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.

The United Kingdom’s New Points-Based Immigration System

Applications for the new work visa routes for eligible overseas workers who wish to work in the United Kingdom from 1 January 2021 opened on 1 December 2020. Provided applicants meet the criteria, workers from overseas, including the European Economic Area (EEA) and Swiss nationals, are now able to apply online for (among other new entry routes), the skilled worker visa, the intra-company transfer visa and the global talent visa.

Federal Court Decision Saves Work Authorization Program for International Students with STEM Degrees

On November 30, 2020, a federal district judge in the matter of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, et al., No. 16-1170, issued an order to uphold the Obama-era program permitting extensions of optional practical training (OPT) work authorizations for certain international students with qualifying science, technology, engineering, and math (STEM) degrees.

What Is the U.K.’s Global Talent Visa?

The new Global Talent immigration category is available for talented and promising applicants in the fields of science, engineering, medicine, humanities, digital technology, and arts and culture (including architecture, fashion design, film and television, and literature). The Global Talent visa is very similar to its predecessor, the Tier 1 Exceptional Talent visa; however, it provides a simpler route and expands on the existing rules. The Global Talent visa is no longer part of the points-based system. Instead, the Global Talent visa route consists of two main stages: the endorsement stage and the application stage. An applicant must already be a leader in his or her respective field (i.e., one who is considered an exceptional talent) or a person with the potential to become a leader in his or her field (i.e., one who shows exceptional promise).

District Court Invalidates New DOL and DHS H-1B Regulations

On December 1, 2020, the U.S. District Court for the Northern District of California granted a motion for summary judgment in favor of the plaintiffs that had requested to set aside two new regulations from the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS). The two rules, both published as interim final rules, changed the way Occupational Employment Statistics (OES) prevailing wages are calculated and changed the definition of a “specialty occupation”. As interim final rules, the DOL and the DHS bypassed the traditional, lengthier notice and comment rulemaking process under the Administrative Procedures Act (APA), with both agencies invoking the good cause exception and citing to the emergent circumstances created by the COVID-19 pandemic.

Public Charge Rule Survives (For Now)

On November 3, 2020, the U.S. Court of Appeals for the Seventh Circuit temporarily stayed an order that the U.S. District Court for the Northern District of Illinois issued in Cook County, Illinois, et al. v. Wolf et al., No. 19-cv-6334 (November 2, 2020). The district court’s order had vacated the U.S. Department of Homeland Security’s (DHS) Inadmissibility on Public Charge Grounds final rule (often referred to as the “public charge rule”) on a nationwide basis.

DHS Proposes Shift to Wage-Based H-1B Selection Process

On November 2, 2020, the U.S. Department of Homeland Security (DHS) published a proposed rule that, if implemented, would amend the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for H-1B cap-subject petitions. The proposed rule would replace the current H-1B random selection lottery process with a wage-based selection process, giving preference to applications for higher-paying positions.