May 23, 2021 Newsletter Powered by ABIL

DHS Issues Final Rule to Remove Vacated H-1B Rule

The Department of Homeland Security issued a final rule, effective May 19, 2021, that removes an interim final rule issued in October 2020 and later vacated by a federal district court, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” The interim final rule made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.

The final rule removes from the Code of Federal Regulations the regulatory text that DHS promulgated in the October 2020 interim final rule and restores the regulatory text to appear as it did before.

Details: · Final rule, DHS, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10489.pdf · Vacated interim final rule, October 8, 2020, https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22347.pdf

ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

The latest extension includes guidance for employees hired on or after June 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) process until they undertake non-remote employment on a “regular, consistent, or predictable basis,” or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If there are employees physically present at a work location, no exceptions are being implemented for in-person verification of identity and employment eligibility documentation.

Details: · ICE announcement, May 26, 2021, https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-

Round Table of Former Immigration Judges Asks Attorney General to Review, Rescind Trump Administration Decisions

The Round Table of Former Immigration Judges (RTFIJ), a group of 40 former immigration judges and appellate-level judges of the Board of Immigration Appeals, sent a letter on May 25, 2021, asking Attorney General Merrick Garland to “review and rescind many, if not all, of the decisions that former Attorneys General Sessions, Whitaker, Barr, and Rosen certified to themselves.” RTFIJ said that the “vast majority of those decisions overturned decades of substantive and procedural immigration law and policy and are antithetical to an unbiased and independent immigration court system.”

RTFIJ singled out 17 cases divided into three general categories: (1) decisions regarding the authority of Immigration Judges to control and manage their own dockets; (2) decisions involving the intersection of criminal and immigration laws; and (3) decisions that significantly contract substantive asylum laws. RTFIJ said it is especially concerned about the first and third categories, which “have turned the Immigration Courts into nothing more than cogs in the deportation machine, and Immigration Judges into prosecutors instead of fair and impartial adjudicators.” RTFIJ noted that instead of ensuring the issuance of more orders of removal, the Department of Homeland Security “succeeded only in increasing the case backlog exponentially while reducing the overall case completion rate.”

Details: · RTFIJ letter, May 25, 2021, https://immigrationcourtside.com/wp-content/uploads/2021/05/AG-Garland-letter-Precedents-FInal.pdf



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