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.

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.

USCIS Policy Memo Targets H-1B Petitions Involving Off-Site Employment

Through its latest policy memorandum, issued on February 22, 2018, U.S. Citizenship and Immigration Services (USCIS) has formalized additional requirements for H-1B petitions involving off-site employment. While USCIS states that its requirements for employers to provide detailed contracts and itineraries as described in the policy memo are intended to combat fraud and abuse due to an increased rate of H-1B program violations with off-site employees, the primary effect of the memo seems to be a more onerous process for filing such H-1B petitions.

President Trump’s Four Pillars for Immigration Reform

In his first State of the Union address on Tuesday January 30, 2018, President Donald Trump highlighted his plan for immigration reform, which consists of four pillars: (1) creating a path to citizenship for DREAMers, (2) securing the border, (3) eliminating the diversity visa lottery, and (4) limiting family-based immigration. The immigration debate has become a prominent component of the broader budget negotiations playing out in Congress, with relief for DREAMers under the Deferred Action for Childhood Arrivals (DACA) program being pitted against funding for a wall and other border security measures. The president’s aims to eliminate the diversity visa lottery and restrict the family members who would be eligible for family-based immigration are consistent with the themes previously espoused by the administration. However, such changes would require legislation to be enacted. Until and unless such legislation is passed, those visa categories remain in effect under U.S. law.

Forward Movement in January 2017 Visa Bulletin Could Be Offset by Increased Demand

Perhaps in response to the recent presidential election, the demand for immigrant visas has noticeably surged across most employment-based immigrant visa preference categories. While the final action dates for most preference categories have moved forward, meaning additional numbers of foreign nationals may proceed with applications for immigrant visa processing or adjustment of status, Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State (DOS), forecasts that additional final action cutoff dates are likely be imposed for several of the preference categories that are “current” as of today.

Fifth Circuit Upholds Injunction Against Obama’s Immigration Actions

The Fifth Circuit Court of Appeals has affirmed the preliminary injunction against President Barack Obama’s executive action that would potentially have shielded approximately 4.4 million undocumented immigrants from deportation and allowed them to immediately apply for work authorization. President Obama announced his immigration plan, which included an expansion of the Deferred Action for Childhood Arrivals (DACA) program and created a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), nearly a year ago, but quickly encountered hurdles when his executive action was halted by the U.S. District Court for the Southern District of Texas in response to a lawsuit brought by 26 states. The recent Fifth Circuit decision in State of Texas v. United States further postponed President Obama’s plan to implement expansive immigration relief for millions of undocumented immigrants living in the United States and raises some contentious issues about the extent of the President’s executive power.

Update on STEM OPT Work Permit Extension: Administrative Process for Regulation Is Underway

In response to Judge Ellen Segal Huvelle’s ruling in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015) that vacated the previous regulations on STEM Optional Practical Training (OPT) work permit extension, on October 2, 2015, the Department of Homeland Security (DHS) submitted proposed new STEM OPT regulations to be reviewed by the Office of Management and Budget (OMB).   Judge Huvelle’s ruling imposed a February 12, 2016 deadline for the promulgation of a new rule in order to continue the STEM OPT program for F-1 students. This action marks the first step in the process to obtain the new final rule.