Breaking News: Major Settlement Changes How USCIS Will Adjudicate Employment Authorization Documents for Nonimmigrant Spouses

Today, the American Immigration Lawyers Association (“AILA”) and its litigation partners achieved a historic settlement with the Department of Homeland Security (“DHS”) in Shergill, et al. v. Mayorkas, Case 2:21-cv-01296, 9/23/21 in the U.S. District Court for the Western District of Washington.

In Shergill, AILA brought a class action lawsuit on behalf of H-4 and L-2 spouse who had applied for work authorization as the dependents of H-1B and L-1 principal visa holders, but had faced processing delays, forcing them out of employment and creating gaps in work authorization.

The parties’ settlement reverses a U.S. Citizenship and Immigration Services (“USCIS”) policy that prohibited H-4 spouses from obtaining automatic extensions of their employment authorization during the pendency of standalone employment authorization document (“EAD”) applications.  The settlement represents a massive change in position by USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization based upon their underlying status, meaning spouses of executives and managers will no longer have to apply for EADs prior to working in the United States. Continue reading “Breaking News: Major Settlement Changes How USCIS Will Adjudicate Employment Authorization Documents for Nonimmigrant Spouses”

U.S. Announces Updates to International Air Travel Vaccine Policy

Beginning November 8, 2021, adult foreign nationals traveling to the United States by air, with limited exceptions, must demonstrate proof of full vaccination against COVID-19 and must also provide a negative COVID-19 test taken in the past 3 days.

This new global travel system replaces the existing country-by-country restrictions, putting in place a consistent approach worldwide.  Airlines will be responsible for verifying the vaccination and testing status of their passengers.

Unvaccinated travelers – whether U.S. citizens, LPRs, or the small number of excepted unvaccinated foreign nationals – will now need to show documentation of a negative viral test from a sample taken within 1 day of travel to the United States. Continue reading “U.S. Announces Updates to International Air Travel Vaccine Policy”

November 2021 Visa Bulletin Signals Severe Retrogression for Indian EB-3 Visas

Each month, the U.S. Department of State’s Visa Office (V.O.) compiles an update to the “waiting list” for immigrants from countries subject to the quota system under the Immigration and Nationality Act.

The total number of documentarily complete applicants reported to V.O. are compared each month with the numbers available for the next regular allotment of visas that may be issued.  Numbers are then allocated to reported applicants in order of their priority dates, with the oldest dates processed first.

If there are enough visa numbers available in a particular category to satisfy the demand of documentarily complete applicants, the category is considered “current.”  For example, if the Employment First preference monthly target is 5,000 and there are only 3,000 applicants, the category is “current.”

However, when the total number of documentarily complete applicants in a visa category exceeds the available supply of visa numbers allotted for the upcoming month, the category is considered “oversubscribed,” and a visa availability final action date is established.  This results in visa “retrogression,” which refers to situations when there are more visa applicants for a certain category or country than there are available visas for that month. Continue reading “November 2021 Visa Bulletin Signals Severe Retrogression for Indian EB-3 Visas”

DHS Releases Worksite Enforcement Strategy to Protect the American Labor Market, the Dignity of Workers, and Worksite Conditions

On October 12, 2021, the U.S. Department of Homeland Security directed ICE, CBP, and USCIS to take actions to promote a fair labor market by supporting more effective enforcement of wage protections, workplace safety, labor rights, and other employment laws and standards.

“The Department of Homeland Security has a critical role to ensure our Nation’s workplaces comply with our laws,” said U.S. Department of Homeland Security Secretary Alejandro Mayorkas.  “We will not tolerate unscrupulous employers who exploit unauthorized workers, conduct illegal activities, or impose unsafe working conditions.  Employers engaged in illegal acts compel the focus of our enforcement resources.  By adopting policies that focus on the most unscrupulous employers, we will protect workers as well as legitimate American businesses.”

In accordance with a memorandum issued by Secretary Mayorkas on October 12, ICE, CBP, and USCIS will develop and update policies to enhance DHS’s enforcement of employment and labor standards.  The agencies must also develop strategies for prioritizing workplace enforcement against unscrupulous employers and, through the exercise of prosecutorial discretion, facilitate the participation of vulnerable workers in labor standards investigations.  Employers who shirk employment regulations not only harm workers, they also unfairly drive down business costs and disadvantage their business competitors who abide by the law. Continue reading “DHS Releases Worksite Enforcement Strategy to Protect the American Labor Market, the Dignity of Workers, and Worksite Conditions”

Reuters: U.S. to lift Canada, Mexico land border restrictions in Nov for vaccinated visitors

WASHINGTON, Oct 12 (Reuters) – The United States will lift restrictions at its land borders with Canada and Mexico for fully vaccinated foreign nationals in early November, ending historic curbs on non-essential travelers in place since March 2020 to address the COVID-19 pandemic.

U.S. Homeland Security Secretary Alejandro Mayorkas said in a statement the administration next month “will begin allowing travelers from Mexico and Canada who are fully vaccinated for COVID-19 to enter the United States for non-essential purposes, including to visit friends and family or for tourism, via land and ferry border crossings.”

The new rules are similar but not identical to planned requirements announced last month for international air travelers, U.S. officials said in a call earlier with reporters.

Continue reading “Reuters: U.S. to lift Canada, Mexico land border restrictions in Nov for vaccinated visitors”

TechGig: New H-1B VISA rules changed by the US court, all details here

A proposed Donald Trump-era rule to replace the current H-1B cap lottery system with a wage-level-based selection procedure has been knocked down by a federal judge in the United States.

U.S. District Judge Jeffrey S. White A Trump-era H-1B cap selection regulation was nullified by the Northern District of California District Court on the basis that then-Acting Homeland Security Secretary Chad Wolf was not lawfully operating in his post at the time the regulation was adopted.

The judge ruled in favour of the United States on Wednesday. According to the court ruling submitted by the Chamber’s litigation centre, the Chamber of Commerce filed a motion for summary judgement in the complaint challenging the regulation.
Continue reading “TechGig: New H-1B VISA rules changed by the US court, all details here”

Financial Times: US to relax EU and UK travel restrictions for vaccinated passengers

Vaccinated passengers will be able to travel to the US from the EU and UK from
November onwards, the Biden administration will announce on Monday, in a
major diplomatic victory for Brussels and London.

The White House will announce a new travel policy on Monday morning, marking the end of the 18-month blanket ban on travel imposed by Donald Trump, the former US president, at the beginning of the Covid-19 pandemic that was maintained by Joe Biden. Continue reading “Financial Times: US to relax EU and UK travel restrictions for vaccinated passengers”

FORBES: Judge Kills The Last Trump H-1B Visa Rule Left Standing

A federal judge has ended a Trump administration regulation designed to make it difficult for international students to gain H-1B status. The ruling is the latest judicial decision to stop a Trump administration H-1B rule, leaving in tatters the legacy pursued by Trump aide Stephen Miller and others.

Between 2017 and 2021, Trump administration officials increased H-1B denial rates by issuing memos and policies that judges determined to be unlawful. Once those policies ended, H-1B denial rates returned to pre-Trump levels, according to a National Foundation for American Policy analysis. Today, the most significant H-1B restriction is the same one in place before Donald Trump took office—the 85,000 annual limit on new H-1B petitions for companies.

Continue reading “FORBES: Judge Kills The Last Trump H-1B Visa Rule Left Standing”

The Economic Times: Policy change to benefit children of H-1B visa holders in the US

A new policy update from the US Citizenship and Immigration Services will make it easier for children of non-immigrant visa holders in the US to shift to a F-1 student visa, benefiting the children of thousands of H-1B visa holders in the US. Under the previous policy, applicants needed to maintain status up to 30 days before the program start date, which required them to file multiple visa extensions to ensure that they do not have a ‘gap’ in status.

“To prevent a ‘gap’ in status, USCIS will grant the change of status to F-1 effective the day we approve an applicant’s Form I-539, application to extend/change non-immigrant status. If we approve an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time,” said the policy update. Continue reading “The Economic Times: Policy change to benefit children of H-1B visa holders in the US”

CBS News: Judge orders U.S. to close DACA program to new applicants, calling it illegal

A federal judge in Texas ordered the U.S. government on Friday to close the Deferred Action for Childhood Arrivals (DACA) program to new applicants, saying the Obama administration did not have the legal authority to grant deportation relief and work permits to undocumented immigrants brought to the U.S. as children.

Granting a request by Texas and other Republican-led states, U.S. District Court Judge Andrew Hanen required the Biden administration to stop approving new applications for DACA, blocking tens of thousands of immigrant teenagers and young adults from accessing the Obama-era legal protections.

Hanen did not order the government to strip the work permits and deportation protections from the more than 616,000 immigrants who are already enrolled in DACA.

Continue reading “CBS News: Judge orders U.S. to close DACA program to new applicants, calling it illegal”