Travel Restrictions Increase in Response to Coronavirus Variant
Last week, in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who had been in any of eight countries in southern Africa for the prior 14 days would be barred from entry into the United States. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. Since then, the new variant has spread to at least 23 countries, including the United States, and more are likely, according to the World Health Organization. The Biden administration subsequently announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021. Fines for noncompliance with the mask requirement range from $500 for a first offense to $3,000 for repeat violations.
For the testing requirement, the CDC rules state that those who recently recovered from COVID-19 may instead travel with documentation of recovery (i.e., a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that the passenger was cleared to travel).
Regarding the one-day requirement for testing, the CDC explained:
  • The 1-day period is 1 day before the flight’s departure. The Order uses a 1-day time frame instead of 24 hours to provide more flexibility to the air passenger and aircraft operator. By using a 1-day window, test acceptability does not depend on the time of the flight or the time of day that the test sample was taken.
  • For example, if your flight is at 1 pm on a Friday, you could board with a negative test that was taken any time on the prior Thursday.
The Biden administration indicated that more countries could be added to the restricted list if warranted. As this is a rapidly developing, fluid situation, travelers should check the latest updates before departure.
Source: ABIL Newsletter, December 6, 2021
New Funding Bill Contains Immigration Provisions
The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The House of Representatives passed the bill by a vote of 221-212, and the Senate passed it by a vote of 69-28. President Biden signed it into law on December 3.
The immigration provisions include:
  • $7 billion to support Operation Allies Welcome, including resettlement of Afghans who aided U.S. military operations in Afghanistan
  • $1.6 billion for services for unaccompanied minors crossing the U.S.-Mexico border who are under the care of the Department of Health and Human Services
Source: ABIL Newsletter, December 6, 2021
Significant Changes That Will Affect Dependent Spouses’ Employment Authorization and Application Requirements
On November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) announced significant changes to its policies governing employment authorization for certain nonimmigrant-dependent spouses.1 These policy changes mirror the terms of a settlement agreement between the Department of Homeland Security (DHS) and various plaintiffs to resolve federal litigation challenging the previous policy.2 The litigation and subsequent settlement addressed issues relating to employment authorization for L-2 and H-4 spouses. The USCIS policy announced on November 12 expands coverage of the new policy to include dependent spouses in E nonimmigrant status. The litigation settlement agreement confirms that L-2 nonimmigrants who are the spouse of an L-1 nonimmigrant are authorized to engage in employment in the United States incident to their status. The subsequent USCIS policy announcement provides that nonimmigrant spouses maintaining both L-2 and E dependent status are authorized to engage in employment incidents to their status. The USCIS policy announcement further clarifies that such dependent spouses are no longer required to apply for employment authorization. In the future, such L-2 and E-dependent spouses will no longer need to wait to receive an Employment Authorization Document (EAD) prior to beginning or continuing employment.
Documenting Employment Authorization of L-2 and E Nonimmigrant Dependent Spouses
This major liberalization of USCIS policy, however, comes with a significant qualification that frustrates immediate relief for L-2 and E spouses waiting to engage in employment. To comply with the employment eligibility verification requirements of the Immigration and Nationality Act and implement regulations3, employers must review documentation establishing the identity and employment eligibility of new employees and reverify the employment eligibility of employees whose documents expire. To satisfy these requirements, a nonimmigrant worker may present, inter alia, a foreign passport to establish identity and a Form I-94 to demonstrate employment eligibility. The Form I-94 issued to L-2 and E dependents, however, do not distinguish between children who are not authorized to engage in employment and spouses who are. Paradoxically, although L-2 and E dependent spouses are authorized to engage in employment incidents to their status, they may be temporarily blocked from commencing, or in some cases continuing, employment for lack of a sufficiently annotated Form I-94. For the short-term future, such persons will continue to be obliged to present separate documentation. This is discussed below.
In the litigation settlement agreement dated November 10, 2021, DHS agreed that within 120 days, USCIS, in cooperation with Customs and Border Protection (CBP) will change Form I-94 to record the bearer is a dependent L-2 or E spouse4 so that it can be used as a List C document for Form I-9 purposes. In the short term, until DHS develops an administrative solution to this documentation requirement, L-2 and E dependent spouses are deprived of the expedient of departing the U.S. and reentering to obtain a new Form I-94 annotated to reflect their employment authorization as a spouse.
When and how DHS will determine that the bearer of an L-2 or E visa is a spouse, as well as the form of the annotation that will appear on Forms I-94 issued to them, is a matter of some speculation. To maintain the security of the document, it is unlikely that an ink stamp or written notation would be adopted by DHS. One option may be for DHS to pull data from the Consular Consolidated Database (CCD) when creating the electronic Form I-94 accessible to nonimmigrants through the CBP website. The CCD is a shared database allowing CBP to view information entered by consular officers during the visa-issuance process. Of course, this approach would not account for citizens of Canada entering the U.S. in L-2 status and a separate solution would be necessary for them. Furthermore, USCIS would need to develop a system for annotating Forms I-94 attached to Form I-797, approval notices issued when a nonimmigrant changes to or extends L-2 or E dependent spouse status within the U.S.
During the four-month period, while DHS develops an administrative solution for annotating Forms I-94 for L-2 and E dependent spouses, such individuals will continue to need an EAD to begin or continue employment. Furthermore, the new USCIS policy confirms that, while L-2 and E dependent spouses will no longer be required to obtain an EAD, they may apply for one if desired.
Eligibility of H-4 Spouses to Engage in Employment
Certain H-4 dependent spouses qualify for employment authorization.5 Unlike L-2 and E dependent spouses, all H-4 nonimmigrant spouses are not authorized to engage in employment incidents to their status. An H-4 nonimmigrant spouse of an H-1B nonimmigrant may be eligible for employment authorization only if the H-1B nonimmigrant is 1) the principal beneficiary of an approved I-140, Immigrant Petition for Alien Worker, or 2) has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).
Some USCIS Service Centers report adjudication timeframes of approximately 10-13 months for I-539 applications for H-4 status and 8 to 12 months for I-765 applications for the H-4 EAD.6 Neither the DHS litigation settlement nor the USCIS policy announcement address the harms associated with the wait for initial I-765 applications for employment authorization filed by H-4 spouses. However, qualifying H-4 spouses applying to extend previously approved employment authorization receive a narrow carve-out for relief as described below.
Automatic Employment Authorization for H-4, L-2, and E Dependent Spouses
It is impossible to overstate the difficulties encountered by the current, epic delay in adjudication of Form I-765, Application for Employment Authorization. The delay in adjudication of employment authorization documents continues to be relevant for L-2 and E dependent spouses while DHS creates an annotated Form I-94 (as discussed in more detail above) and will continue to affect qualifying H-4 spouses well into the future.
The DHS settlement agreement as articulated in the new USCIS policy seeks to ameliorate the harm caused by the adjudication delay by providing an automatic extension of employment authorization in certain circumstances. To benefit from automatic employment authorization, qualifying H-4, L-2, and E dependent spouses must satisfy two conditions. These are 1) they must be in possession of an unexpired Form I-94 demonstrating their nonimmigrant status, and 2) they must have timely filed an application with USCIS to renew their employment authorization document prior to its expiration.
Given the equally long delays in the adjudication of I-539 applications for the extension of status by H-4, L-2, and E dependents, the requirement to demonstrate an unexpired Form I-94 is extremely problematic. While a principal nonimmigrant worker may be eligible for a 15-day adjudication through the USCIS Premium Processing service, dependents are not currently eligible to benefit from that option. A change to the current USCIS policy which decouples the adjudication of dependent status extension applications from a premium processed principal’s petition could provide significant relief.7
If USCIS does not alter its current policy precluding dependents from premium processing benefits, an alternative solution may be for such dependents to depart the U.S., obtain a new dependent visa and reenter the U.S. In the short term, this solution also may be frustrated by the scarcity of nonimmigrant visa application appointments at U.S. consulates around the world. There is the reason for hope, however, that the current long waiting period for a nonimmigrant visa application appointment at many consular posts may begin to revert to historical norms.8
For those H-4, L-2, and E dependent spouses who satisfy the two conditions identified above, automatic employment authorization extension of their EAD will continue until the earliest of 1) the end of their status as indicated on Form I-94, or 2) the approval or denial of their EAD application, or 3) 180 days from the date of the expiration of the previous EAD.
Presently, to continue employment in the U.S. following the expiration of their EAD, qualifying H-4, L-2, and E dependent spouses will need to present a combination of documents to their employer to update Form I-9, Employment Eligibility Verification. These documents include 1) an unexpired Form I-94, 2) an expired EAD annotated with the eligibility category of (a)(17), (a)(18), or (c)(26), and 3) a Form I-797C, receipt notice, for a Form I-765, Application for Employment Authorization, with a receipt date before the expiration of the EAD and indicating that the application seeks to renew the same eligibility category as indicated on the expired EAD.
Source: AILA Doc. No. 21113004, November 29, 2021
  • USCIS Issues Policy Guidance on Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses, AM. IMMIGRATION LAWYERS ASS’N (Nov. 12, 2021), AILA Doc. No. 21111206, https://www.aila.org/infonet/uscis-issues-policy-guidance-on-employment.
  • See DHS Agrees to Employment Authorization-Related Settlement Agreement with H-4 and L-2 Spouses, AM. IMMIGRATION LAWYERS ASS’N (Nov. 10, 2021), AILA Doc. No. 21111005, https://www.aila.org/infonet/dhs-agrees-to-employment-authorization-related.
  • INA 274A; 8 CFR 274a.
4 DHS Agrees to Employment Authorization-Related Settlement Agreement supra note 2.
  • See Practice Pointer: H-4 EADs, AM. IMMIGRATION LAWYERS ASS’N (Apr. 25, 2017), AILA Doc No. 17042530, https://www.aila.org/infonet/practice-pointer-h-4-eads.
  • Check Case Processing Times, U.S. CITIZENSHIP & IMMIGRATION SERV., https://egov.uscis.gov/processing-times/.
  • See Practice Alert: Form I-539 No Longer Eligible for “Courtesy” Premium Processing, , AM. IMMIGRATION LAWYERS ASS’N (July 15, 2019), AILA Doc. No. 19071532, https://www.aila.org/infonet/practice-alert-form-i-539-no-longer-eligible.
  • On November 19, 2021, the Department of State announced a renewed focus on reducing wait times for appointments, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html
Democrats Propose for Immigration Relief to Senate Parliamentarian
Democrats made their case Wednesday for including temporary immigration protections in their social spending bill — setting the stage for a potential showdown on the party’s last-ditch effort to provide some degree of protection for the undocumented community.
Senate Democrats met with Parliamentarian Elizabeth MacDonough to argue that immigration protections are eligible to be included in a $2.2 trillion reconciliation bill, while Senate Republicans opposed inclusion. Under the so-called Byrd rule, reconciliation bills, which can pass with a filibuster-proof majority, must primarily impact the federal budget.
The bipartisan meeting, known as a “Byrd bath,” follows an information discussion MacDonough had on Nov. 23 with Senate staffers, who emerged feeling positive, according to a source familiar with the meeting. The source said MacDonough, a Senate adviser, did not reject their proposal outright, as she had with earlier versions of the immigration section, and indicated she wanted to move forward with the process.
Top Senate Democrats involved also acknowledge that changes to the House-passed immigration section are likely to usher the provisions past the finish line.
The Congressional Budget Office estimated the provisions, which offer up to five-year work permits and deportation protections, will add more than $300 billion to the deficit after 2031, which could doom the provisions under Senate rules.
That estimate is based, in part, on an assumption the Department of Homeland Security would extend protections for the parents of U.S. citizens and roughly half of other undocumented immigrants beyond the bill’s 10-year life span.
Senate Democrats have yet to put other provisions in front of MacDonough for review that would help immigrants stuck waiting years for a green card in lengthy visa backlogs created by strict per-country caps. Talbot said Wednesday she expects those provisions to be presented soon.
The political stakes are high for Democrats, who promised on the campaign trail to enact meaningful protections for immigrants, including those brought to the U.S. as children, known as Dreamers.
The latest immigration language, which the House passed in November, falls short of advocates’ demands for language creating a pathway to citizenship. MacDonough previously rejected two earlier proposals to allow millions of undocumented immigrants to apply for green cards.
Source:
  • Suzanne Monyak, Roll Call, December 1, 2021: https://www.rollcall.com/2021/12/01/democrats-pitch-parliamentarian-on-immigration-relief/
H-1B Workers Numbers Drop the Most in a Decade
The number of immigrants under the H1-B visa program holding high-tech jobs dropped the most in at least a decade this year in the U.S. amid travel and visa restrictions, even as job openings in the industry reached record highs.
Foreign engineering and mathematics workers on H-1B visas fell 12.6% in the fiscal year ending September 2021 compared to the previous year, according to a Bloomberg News analysis of data from the U.S. Department of Labor.
It was the second consecutive annual decline for a segment of the workforce that has historically seen consistent job growth.
The drop was largely due to a significant slowdown in visa processing during lockdowns and tightened immigration policies stemming from the pandemic, according to immigration lawyers and experts.
Compared with pre-Covid levels in 2019, this year’s number of H-1B employment cases was down 19% for the engineering and mathematics job category.
“Since March 2020, the processing of any new visas has been dramatically slowed and almost halted by travel restrictions,” said Giovanni Peri, a professor of economics at the University of California, Davis. Some jobs in science, technology, engineering, and mathematics, or STEM, may be lost in the visa crunch for good as remote work could offshore them outside of the U.S., according to Peri.
Many U.S. visa processing locations have resumed at a slowed pace after an abrupt suspension across all embassies and consulates in 2020. Earlier this year, President Joe Biden allowed a Trump-era ban on H-1B visas to expire.
The H-1B visa program allows U.S. employers to hire high-skilled foreign workers for jobs in specialty fields like coding and engineering. The tech industry, in particular, relies on the program to ease worker shortages. Engineering and mathematics jobs make up the vast majority of H-1B visas issued.
The program is limited to 85,000 new visas annually, but foreign workers who receive H-1B visas can transfer roles within the same field, change companies, or have their visas extended. These additional certifications — on top of new hires — make up a broader measure of job activity within the program.
This combined metric for all job categories totaled more than 497,000 during the fiscal year 2021, a 9% decrease from 2020 and a 17% decline from 2019. The data Bloomberg News analyzed dates back to 2011.
STEM jobs experienced record layoffs in March and April last year. But the sector recovered quickly and experienced lower unemployment during the pandemic than other industries. There were a record 230,000 job openings in the information sector in September, according to the U.S. Bureau of Labor Statistics.
Source:
  • Linly Lin, Bloomberg News, November 30, 2021: https://www.bloomberg.com/news/articles/2021-11-30/high-skilled-foreign-workers-with-h1-b-visas-drop-most-in-decade
Featured Article: The PERM Facebook Controversy, Part II
Joel Stewart
Fakhoury Global Immigration
Safe Harbor Recruitment Practices
Last month we wrote about the historical and social implications of the Facebook litigation that resulted in consent agreements in October 2021 between Facebook and two separate agencies, the Department of Labor (DOL) and the Department of Justice (DOJ).
These agreements include new rules for recruitment as well as monetary penalties of $4.75 million to the U.S. Treasury and $9.5 million to a settlement fund for U.S. workers against whom Facebook may have discriminated.
While Facebook agreed to new ad hoc interpretations of existing recruitment procedures, these may also serve as new guidance going forward for all PERM employers:
  • Physical and Electronic Posting for 14 Days. According to the agreement with DOL, Facebook agreed to post job opportunities physically in all locations, not just on the proposed job sites but also on bulletin boards throughout its affiliated entities and in Facebook’s in-house electronic media for 14 days. The PERM regulation requires only a ten-day posting period, but since weekends and holidays may intervene, employers have always been advised to post for at least 14 days and special attention needs to be given to the fact that if there is a three-day weekend holiday, 14 days may not be sufficient. The PERM Rule does not limit the number of days for any recruitment step.
  • Separation of Resumes. The separation of resumes between PERM and non-PERM job applicants has always been a muddled question in labor certification practice that is frowned on as it gives the appearance of impropriety. Consider the following implications raised by the stipulations in the consent decrees as recommendations for safe practice:
    • Accept electronic applications for all PERM-related positions on its Careers website as for other roles posted. This form of recruitment, previously held to be optional, may now be best practice for large employers that have lists of job opportunities on its web pages.
    • Enter Facebook’s recruiting system all applicants for all PERM-related position. The intricate rules for PERM recruitment are a challenge for employers, who typically isolate applications for PERM positions to take extra care and consideration and to allow careful oversight by HR personnel and counsel in the preparation of recruitment reports. Ironically, State Workforce Agencies (SWAs) may require employers to indicate if their job orders are for immigration purposes and use internal markings to discourage their counselors from advising job applicants against applying for these positions. Employers will need to create a tracking system with neutral markers to separate job applicants for consideration without crossing the fine line of ‘discrimination by separation’.
    • Not require or encourage applicants to apply via mail for PERM-related positions. Online job applications have become the new norm for submitting resumes for high-tech jobs, and the practice of using the U.S. Postal Service, long sanctioned and recommended by the Board of Alien Labor Certification Appeals, now seems an outdated practice to discourage U.S. workers.
    • Ensure online functionality is enabled to allow applicants for PERM-related positions to apply through state workforce agency websites, where that option exists. SWAs often use overly broad search criteria and post large numbers of applicants who are clearly unqualified for the job offer or who themselves may not want to apply. Employers will need to instruct SWAs to refer all persons who meet the minimum requirements not only for the job offer but for related jobs, who may be interested in being trained within a reasonable period of time. A distinction exists, however, between job referrals and job applicants, as the latter must take the initiative to perfect their applications whilst referrals are names which simply languish on lists.
  • Another set of stipulations focuses on third party recruitment, training of same, and the creation of an agency relationship:
    • Issue a written statement to U.S. based recruiters about their obligations under the non-discriminatory provisions of the INA. The use of recruitment agencies is optional as one of the ten professional recruitment steps, three of which employers must use. The consent expresses a disapproval of recruiters who may themselves discriminate against U.S. workers by using impermissible criteria to select out applicants on behalf of employers.
    • Provide recruiters with training on the INA’s anti-discrimination requirements. This stipulation places recruiters in an agency relationship not contemplated by the PERM Rule, setting the stage for investigation of employers for discrimination practices by independent contractors such as headhunters and private employment agencies.
The Facebook settlements reflect the DOJ Civil Rights Division’s commitment to hold employers accountable to eradicate discriminatory employment practices and the DOJ’s Solicitor stated: “No matter an employer’s size or reach, the Department of Labor is committed to vigorously enforcing the law.”
To further understand safe harbor recruitment practices, a discussion of Supervised Recruitment will be the subject of the next article, since, as evidenced in the Facebook controversy, DOL may require additional recruitment activities if audits reveal the appearance of impropriety, even where no discrimination exists.
Joel Stewart practices exclusively in the area of immigration law. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters as well as a popular speaker at for national and local bar associations throughout the United States. Mr. Stewart is the editor of The PERM Book, the definitive authority on the subject of PERM processing of labor certifications and has been writing BALCA Case Summaries since 1987. Mr. Stewart is also General Counsel to the Brazilian Consulate in Miami and Honorary Consul of Brazil in Florida.
The information provided in this article does not, and is not intended to, constitute legal advice. Instead, all information contain herein are for general informational purposes only. Comments from readers are most welcome and may be addressed to the author at joel.stewart@employmentimmigration.com or to Fakhoury Global Immigration at info@employmentimmigration.com or by phone to 248.643.4900.

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