Update to our previous Blog Post:

Readers will be pleased to learn that the DHS did not submit its scaled-back “H-1B Strengthening” rule by the expiration of the deadline for final rules issued by the Trump Administration.  As a result, the H-1B Strengthening rule is subject to a comprehensive freeze on Trump-era late-filed and

Please review our recent update regarding the content of this blog post.

By Angelo A. Paparelli and Gabriel Mozes

In its waning hours, the Trump Administration announced comprehensive, burdensome changes to H-1B visa requirements for multiple firms across virtually all industries.  Fortunately, however, the changes are set to detonate on a long fuse, i.e., by

The trend of recent months to curtail employment-based immigration, purportedly prompted by the coronavirus pandemic, continues unabated. On August 3, 2020 President Trump issued yet another executive order, this one entitled, “Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers” (“EO” or “Executive Order”). The new EO focuses on federal contractors (and their subcontractors) who employ H-1B and other nonimmigrant foreign workers. While the Executive Order itself imposes no new entry or other immigration restrictions, it instructs the Department of Labor (“DOL”), Department of Homeland Security (“DHS”), and other agencies and departments to take steps that undoubtedly will lay the groundwork to limit H-1B employment in the near future.
Continue Reading Another Day, Another Immigration Executive Order: Now Federal Contractors are Targeted

We’ve seen this movie before.

Scene 1: The President issues a proclamation in reliance on his authority to restrict the entry of certain noncitizens under Immigration and Nationality Act (INA) § 212(f) so long as he asserts that allowing them in would be “detrimental to the interests of the United States.”

Scene 2: The proclamation creates exceptions to the entry bans based on the national interests of the United States (among other grounds).

Scene 3:  Affected parties apply for exceptions; their requests are ignored or denied under opaque or nonexistent administrative procedures; and they sue in federal court.

This was the plot of the three travel-ban proclamations issued in 2017, the last of which the Supreme Court upheld in its 2018 decision, Trump v. Hawaii. After the Supreme Court’s  ruling, litigation ensued because plaintiffs in several suits alleged that the government’s actions (refusing visas under 22 CFR §§ 41.121 and 42.81) conflicted with the proclamation and the statutory authority of the Secretary of State in INA § 104. The litigation continues, having survived a government motion to dismiss, which a federal judge denied on June 5 in Emami v. Nielsen [and] Pars Equality Center v Pompeo (Pars Equality).
Continue Reading Pursuing a National Interest Exception to the Presidential Entry Bans on Economic Grounds — Not A Fool’s Errand

By  Angelo A. Paparelli

In the wake of recent losses in the federal courts, U.S. Citizenship and Immigration Services (USCIS) – on June 17, 2020 – issued a memorandum that rescinds two agency policies which, for more than ten years, had forced employers of H-1B (Specialty Occupation) workers stationed at customer worksites to submit voluminous and burdensome evidence.  Thankfully, under the new interpretation such evidence will no longer be required.

The June 17 memorandum also provides partial guidance on possible petition denials and revocations, as well as potential status violations, when employees are placed in nonproductive status, whether in response to COVID-19, or otherwise.  Yet it leaves many questions unanswered.
Continue Reading Litigation Victories Force USCIS to Rescind Restrictive H-1B Memoranda — Agency Also Offers Unclear Guidance on H-1B “Nonproductive” Status

Seyfarth Blog Synopsis: In today’s posting we discuss the impact that COVID-19 related changes in working conditions, furloughs and layoffs have on  businesses with employees currently working on H-1B, H-1B1 or E-3 work visas.

As we continue complying with shelter-in-place and safer-at-home orders implemented in response to COVID-19, organizations nationwide are also starting to assess the impact of these measures on their businesses and operations.  For some employers and industries the sudden transition to a work-from-home model may have been seamless, but overall, the sheer force of the economic impact of these changes is now being felt as company after company considers possible furloughs, salary reductions, and layoffs to help them revamp operations and survive the economic consequences of the COVID-19 pandemic. For employers who also sponsor non-citizens for temporary work visas like the H-1B, H-1B1 and E-3 (specialty occupation) categories, opting for work-from-home models, furloughs, changes in employment terms, or layoffs as cost-saving measures will require additional analysis.  
Continue Reading Visa Obligations & COVID-19 Changes in Working Conditions

Following the lottery results issued this week, USCIS announced today that H-1B petitioners may begin submitting petitions during the 90 day window noted on the selection notice.  USCIS reported nearly 275,000 unique registrations were submitted during the initial registration period with approximately 46% of all registrations under the advanced degree category.
Continue Reading USCIS FY 2021 H-1B Cap Selections & Filing Window

In-Person Services Suspended Until At Least May 3

In response to Coronavirus Disease 2019 (COVID-19) developments, as of April 1, U.S. Citizenship and Immigration Services (USCIS) updated its office closures suspending routine in-person services until May 3rd.

What does this mean for cases in progress?

USCIS will reschedule appointments for applicants with permanent resident (green

Seyfarth Synopsis: The outbreak of the Novel Coronavirus (COVID-19) has resulted in unprecedented travel restrictions, U.S. consular appointment cancellations, and changes to USCIS operations. To help navigate these challenges, Seyfarth is providing a brief summary of recent developments from the U.S. Department of Homeland Security, U.S. Department of State, and U.S. Department of Labor.

Updates from the U.S. Department of Homeland Security
Continue Reading COVID-19 Immigration Updates From the Agencies

Seyfarth Synopsis: On March 20, 2020, the U.S. Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) issued Frequently Asked Questions in response to the COVID-19 global pandemic, providing guidance and extending certain filing, notice, and response deadlines for employers of foreign nationals.

Highlights 

  • Employers will have thirty (30) days to post Labor Condition Application (LCA) notices for employees moving to a different worksite within the same intended area of employment, such as a home office. 
  • For employers unable to physically post LCA notices, DOL reminds employers of the option to electronically post, and the stringent requirements. 
  • Employers will benefit from a sixty (60) day extension of PERM recruitment and Notice of Filing (“NOF”) requirements for PERM applications filed by May 12, 2020, where recruitment began between September 15, 2019 and March 13, 2020. 
  • Employers may respond to DOL requests by May 12, 2020, where the original response deadline falls within the period from March 13, 2020 through May 12, 2020. 


Continue Reading Department of Labor Extends Deadlines during the Novel Coronavirus (COVID-19) Pandemic