Seyfarth Synopsis: This is the third installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.” Read the first and second installments here. A total of five installments will be published on a
Eliminate Bars to Entrepreneurial Self‐Sponsorship
Seyfarth Synopsis: This is the first installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.” A total of five installments will be published on a weekly basis. Please stay tuned for additional
Why? Oh My! State Department Makes It Harder for Travelers from the Schengen Area, UK, and Ireland to Receive National Interest Exceptions (NIEs) under Pandemic-Based Visa and Entry Bans
“America is back, the trans-Atlantic alliance is back.” – So declared President Biden on February 23, 2021. Apparently, however, Antony J. Blinken, the newly installed U.S. Secretary of State (DOS), didn’t get the memo. On March 2, 2021, he “rescinded the previous national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamation (PP) 10143 [relating] to the Schengen Area, United Kingdom, and Ireland.” As DOS’s announcement of the rescission noted, PP 10143, issued on January 25, 2021, restricted the issuance of visas and U.S. entry to “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.”
NIEs for travelers from these Trans-Atlantic countries had been granted (at times with relative ease at some U.S. embassies and consular posts) based on previous State Department guidance. Under the prior guidance, executives, managers and specialists in the E-1 and E-2 (treaty traders and investors), H-1B (specialty occupation workers) and L-1 (intracompany transferees) visa categories, whose visit could be shown as likely to confer “substantial economic benefit” on the U.S., would often be approved. (For background, see this blog post (“Pursuing a National Interest Exception to the Presidential Entry Bans on Economic Grounds — Not A Fool’s Errand,” and slide deck, “Getting Your Key Employees Back to the U.S. under the National Interest Exceptions” to Presidential Proclamations ~ A Conversation about Eligibility and Process.”)
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The Cloud over H-4 EADs Has Finally Been Lifted
By Jason Burritt and Jake Campbell
Seyfarth Synopsis: The Office of Information and Regulatory Affairs within the Office of Management and Budget announced that the long-pending rule to rescind work authorization for certain H-4 holders has been withdrawn. The withdrawal means that H-4 holders whose spouses have reached certain steps within the employment-based green
Updated: Trump Administration Midnight H-1B Changes Purport to Impose New Burdens on Staffing Firms, Service Providers, and Their Corporate Customers
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
Trump Administration Midnight H-1B Changes Purport to Impose New Burdens on Staffing Firms, Service Providers, and Their Corporate Customers
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 July 14, 2021, unless the Biden Administration, Congress or the Courts sooner intervene. The effects of these changes will be felt by every company that allows H-1B workers to perform services in specialty occupations at its worksite through a contractor, staffing company, or professional employer organization (PEO).
Presently, the obligation of compliance with H-1B requirements affecting required wages, working conditions, benefits and other labor protections under the Immigration and Nationality Act (INA) is imposed solely on the entity directly employing and paying the noncitizen worker and submitting an H-1B visa petition with U.S. Citizenship and Immigration Services (USCIS).
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Another Day, Another Immigration Executive Order: Now Federal Contractors are Targeted
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.
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Pursuing a National Interest Exception to the Presidential Entry Bans on Economic Grounds — Not A Fool’s Errand
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).
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Litigation Victories Force USCIS to Rescind Restrictive H-1B Memoranda — Agency Also Offers Unclear Guidance on H-1B “Nonproductive” Status
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.
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Visa Obligations & COVID-19 Changes in Working Conditions
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.
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