This writing will provide an update of U.S. immigration developments for the month of June 2022 and the potential impact on U.S. employers and foreign nationals.
Court Upholds the End of the Trump-Era Public Charge Rule
The Seventh Circuit upheld a court ruling Monday that stopped a challenge to reinstate a Trump-era immigration rule that made it harder for immigrants to obtain residency.
The “public charge rule,” expanded in 2019 by former President Trump, made it more difficult for noncitizens to obtain residency if they would rely on public benefits such as food stamps, many forms of Medicaid or received housing assistance.
Several states challenged the rule change, and it officially ended in 2021 after President Joe Biden took office. Later last year, a federal court in Illinois tossed an attempt by 14 other states to intervene in the case.
The group of states appealed this denial, which culminated in a hearing before the Seventh Circuit this April. In its Monday ruling, the circuit court sided with the lower court’s decision.
Judge Diane Wood penned the unanimous 32-page ruling and found that the group of states’ wish to intervene and reinstate the rule was no longer timely now that the rule had been abandoned by the Biden Administration.
“Put simply, the writing had long been on the wall that the federal government was likely to abandon its defense of the 2019 rule. We therefore find that the district court did not abuse its discretion in finding that the May 2021 motions to intervene were untimely,” wrote Wood, a Clinton appointee.
The states seeking to intervene and bring back the immigration rule were Texas, Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, and West Virginia.
However, despite finding that the appeal had merits, the three-judge panel concluded that the motions to intervene were untimely for several reasons. Chief among them was the delay of more than two months between the moment it was known that Biden was considering dismissing the appeal and the states’ intervention.
Despite the unfavorable ruling, the Seventh Circuit ruling did not leave the states without recourse, finding that while they agreed with the lower court about timeliness, the states could bring a challenge to the rule’s repeal under the Administrative Procedure Act (APA).
SOURCE: David Wells, Courthouse News Service, June 28, 2022: https://www.courthousenews.com/7th-circuit-upholds-end-of-trump-era-immigration-rule/
New USCIS Policy Alert on Returning to US During 3- or 10-Year Period After Departure or Removal
On June 24, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on inadmissibility under § 212(a)(9)(B) of the Immigration and Nationality Act (INA), specifically, the effect of returning to the United States during the statutory 3- or 10-year period after departure or removal (if applicable). Under the policy guidance, a noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal “is not inadmissible under INA § 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.” A noncitizen’s location during the statutory 3- or 10-year period and the noncitizen’s manner of return to the United States during the statutory period are “irrelevant” for purposes of determining inadmissibility under INA § 212(a)(9)(B), USCIS said.
The alert also notes that some noncitizens may be able to file a motion to reopen their previously denied applications with USCIS using Form I-290B, Notice of Appeal or Motion.
SOURCE: USCIS Policy Alert (PA-2022-15), June 24, 2022, https://bit.ly/3OoB1TV
House Advances Amendment to Recapture Unused Visa Numbers
The House of Representatives’ Appropriations Committee passed an amendment, introduced by Rep. Grace Meng (D-NY), to Department of Homeland Security (DHS) appropriations for fiscal year 2023 that would recapture unused, expired family- and employment-based immigrant visa numbers lost for various reasons since 1992. The amendment would also provide visa relief for immigrants banned from traveling to the United States during the Trump administration.
Several previous attempts in Congress to restore unused visa numbers have been unsuccessful. It is unclear whether this amendment will ultimately succeed.
The language of the amendment states the unused green cards would be issued without regard to the per-country limit, which, combined with the recapturing of green cards that went unused due to processing problems in the years before the pandemic, means tens of thousands of individuals waiting in the employment-based immigrant backlog would benefit, as well as individuals waiting in family backlogs.
SOURCE: “Decades’ Worth of Unused Immigrant Visas Salvaged in House Bill,” Bloomberg Government, June 24, 2022: https://bit.ly/3xOTCBE ; and Stuart Anderson, “Good Immigration News on Green Cards and Afghan Parole.” Forbes, June 27, 2022: https://www.forbes.com/sites/stuartanderson/2022/06/27/good-immigration-news-on-green-cards-and-afghan-parole/?sh=17b9cf9b7e00
E-Verify Releases New Case Processing Features
On June 21, 2022, E-Verify released several new features “to increase awareness of existing duplicate
cases and reduce overall case processing time.” E-Verify also redesigned the “Search Cases” page to provide “a more robust case query function.”
Among other things, the duplicate case lookback period was expanded from 30 days to 365 days.
SOURCE: ABIL Newsletter, June 27, 2022 and E-Verify New Features and Updates, June 2022, https://www.e-verify.gov/june-2022
The Biden Administration Rescinds Negative COVID-19 Test Requirement for Flying to the United States
As of June 12, 2022, air travelers to the United States no longer need to show a negative COVID-19 test result or documentation of recovery before boarding, the Centers for Disease Control and Prevention (CDC) announced.
CDC continues to recommend that travelers boarding a flight to the United States get tested for current infection with a viral test as close to the time of departure as possible (no more than 3 days) and not travel if they are sick. CDC said it “continues to evaluate the latest science and state of the pandemic and will reassess the need for a testing requirement if the situation changes.”
SOURCE: CDC, June 10, 2022: https://bit.ly/3Q9ZUEp
Office of Foreign Labor Certification Has Updated Its Standard Occupational Classification System
The Department of Labor’s Office of Foreign Labor Certification (OFLC) will begin using the 2018 Standard Occupational Classification (SOC) system on July 1, 2022, in place of the 2010 SOC system. Since September 1999, the Occupational Employment and Wage Statistics program has used the SOC system to classify occupational wage information. The SOC provides a common language for categorizing occupations and serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET).
OFLC’s National Prevailing Wage Center (NPWC) hosted a webinar on the implementation of the 2018 Standard Occupational Classification (SOC) system that presented background and an implementation timeline and reviewed how the new classification will affect Prevailing Wage Determinations. This event was recorded, and all materials will be placed on the Prevailing Wage tab of the OFLC’s website for future access.
SOURCE: OFLC, June 10, 2022: https://www.dol.gov/agencies/eta/foreign-labor
DHS Urged by Tech Giants To Revamp Policies on High-Skilled Workers’ Children
A coalition of U.S.-based tech companies sent a letter to Homeland Security Secretary Alejandro Mayokas asking him to revamp the department’s policies for children of high-skilled visa holders.
In the letter sent on Tuesday, June 7, obtained by the Wall Street Journal, the coalition asked the Biden administration to establish “more robust aging out policies” in an effort to address the issue of children of long-term visa holders being able to continue as beneficiaries of their parents’ pending green card applications even after they turn 21 years of age.
The coalition noted that more than 200,000 children have grown up in this country under their parents’ protected visa status, which included those who are holders of H-1B visas.
The letter was signed by tech companies such as Twitter, Uber Technologies Inc., Amazon, Google and IBM.
The coalition also encouraged Congress to the bipartisan legislation called America’s Children Act, which will create a pathway to citizenship for children of long-term visa holders, often referred to as “document dreamers,” and provides a long-term resolution to the issue.
SOURCE: Olafimihan Oshin, The Hill, June 7, 2022: https://thehill.com/policy/technology/3514824-tech-giants-urge-dhs-to-revamp-policies-for-high-skilled-visa-holders-children/
Department of Labor Releases Processing Updates
On May 31, the U.S. Department of Labor (DOL) released new processing times for PERM applications and requests for prevailing wage determinations (PWDs).
Currently, DOL is adjudicating PWD requests for H-1B cases that were filed in November 2021 or earlier. DOL has also just begun to adjudicate some PWD requests filed for PERM cases in December 2021.
DOL is also adjudicating PERM applications for November 2021 and those filed prior to that month. The agency is also conducting audits of PERM applications filed in September 2021 or earlier. Currently, it is taking DOL approximately 191 calendar days to conduct Analyst Reviews and 278 days to conduct Audit Reviews.