Mr. Bumgardner’s practice includes a full range of business immigration matters in a variety of industries, with an emphasis on semiconductor design and manufacturing, industrial and power equipment manufacturing, information technology, biotechnology, life sciences, and health care. He assists employers in obtaining temporary and permanent work visas on behalf of new and current employees. Mr. Bumgardner possesses extensive knowledge and experience in preparing visa petitions for extraordinary ability workers (O-1), specialty occupations (H-1B, H-1B1 and E-3), and the transfer of managers, executives and specialized knowledge foreign personnel to startup and established U.S. offices (L-1). He is experienced in securing work-authorized classifications for professionals entering the U.S. pursuant to NAFTA (TN), as well as a variety of other temporary employment visa classifications. Mr. Bumgardner also assists with obtaining U.S. Department of Labor approval of applications for alien employment certification (PERM) and petitioning for extraordinary ability, outstanding researcher, and multinational manager and executive immigrant petitions (EB1). Mr. Bumgardner possesses extensive experience advising on the immigration impacts related to corporate restructurings and mergers and acquisitions, as well as Reductions in Force. He also assists companies with I-9 compliance issues including internal audits, government investigations, and compliance programs.
Insights by Brian D. Bumgardner
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.
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.
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.
On October 8, 2020, the U.S. Department of Homeland Security (DHS) published its long-speculated interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” According to the interim final rule’s summary, the purpose of the new rule is to “strengthen the integrity of the H-1B program during the economic crisis caused by the COVID-19 public health emergency to more effectively ensure that the employment of H-1B workers will not have an adverse impact on the wages and working conditions of similarly employed U.S. workers.”
DOL Issues Interim Final Rule Adjusting Wage Level Calculations for H-1B, H-1B1, E-3 Visa and PERM Programs
On October 8, 2020, the U.S. Department of Labor (DOL) published its long-speculated interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The new rule will update how the existing “four-tiered wage structure based on the Occupational Employment Statistics (OES) wage survey” is calculated for purposes of determining prevailing wages. The rule goes into effect immediately on October 8, 2020, with no notice period. These changes will result in significant wage increases to the wage levels for all four levels of the OES survey, across all occupations. The wage adjustments will affect the processing of H-1B, H-1B1, and E-3 temporary work visas, as well as permanent labor certification program (PERM) applications.
Second Circuit Limits Scope of Injunction on Public Charge Rule to Connecticut, New York, and Vermont
On August 12, 2020, the United States Court of Appeals for the Second Circuit limited the scope of a nationwide injunction that had blocked the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from implementing and enforcing the Inadmissibility on Public Charge Grounds final rule (commonly called the “public charge rule”) during the COVID-19 pandemic. The decision, which came only days after a series of recent federal court decisions on the controversial rule, restricts the scope of the nationwide injunction to only those states under the jurisdiction of the Second Circuit.