News

While Covid-19 has certainly had an impact on the H-1B program in terms of access to actual visas due to consulate closures and geographic travel suspensions, the question remains whether the U.S. will still need high-skilled foreign workers in a post-pandemic economy. With remote work now normalized and the possibility of keeping resources offshore, will employers resume filing H-1B visas when regular travel and visa stamping is possible again? New research from the New American Economy says yes.

The U.S. Immigration and Customs Enforcement (ICE) officials are given more discretion in the selection of which deportation cases to pursue or drop entirely. Congress has given the Department of Homeland Security in turn ICE the power to enforce immigration laws against a person or a group of people. The choice ICE attorneys make in deciding who to enforce the law against is called prosecutorial discretion. Each administration directs how the agency should use its discretion. The Biden administration made the announcement via an agency memo with giving guidance to ICE lawyers to use their prosecutorial discretion in prioritizing which case to pursue. During the Trump administration, ICE attorneys were directed to proceed with all removal cases without utilizing their discretion.

On June 9, USCIS announced a series of policy updates which will greatly improve processing times and provide much needed relief to nonimmigrant workers in the U.S. Among these updates, USCIS has clarified the criteria for expedited processing, rescinded a policy memorandum that allowed USCIS to deny petitions outright without issuing an RFE or NOID first, as well as extended the validity period for EADs during the pending I-485 stage.

These policy updates represent a shift towards more favorable immigration policies, which is welcome news for many. In announcing these policy measures, Acting USCIS Director Tracy Renaud stated that these improvements are consistent with the Biden Administration’s “priorities to eliminate unnecessary barriers to our nation’s legal immigration system and reduce burdens on noncitizens who may be eligible for immigration benefits.”

The Department of Homeland Security (DHS) recently withdrew the proposed rule that paved the way for the elimination of the International Entrepreneur (IE) parole program. As a result, parties interested in the IE Parole program need to familiarize themselves with the program overall.

On June 1, the U.S. Supreme Court unanimously ruled to overturn a Ninth Circuit credibility test which benefited asylum seekers seeking judicial review of their denied asylum claims. The credibility test required that an asylum seeker’s testimony be treated as truthful by the reviewing court, as long as the BIA or immigration judge did not make an explicit adverse credibility determination when denying the claim at the earlier stage.

In its decision, the U.S. Supreme Court found that this rule was improper, as it imposed additional procedural requirements on the immigration agencies which were not prescribed by Congress. The Immigration and Nationality Act (INA) requires that reviewing courts accept reasonable findings from the Board of Immigration Appeals (BIA). However, under the Ninth Circuit “credibility test” rule, the BIA would need to make an explicit adverse credibility determination, or the reviewing court would not be required to accept their findings. In the U.S. Supreme Court’s decision, Justice Gorsuch found that imposing these additional judge-made procedural requirements on the BIA was inconsistent with both the INA and Congress’ intent.

The U.S. Immigration and Customs Enforcement (ICE) announced an extended flexibility period for Form I-9 due to ongoing COVID-19 issues. The original flexibility was announced in March 2020.

Employees hired on or after June 1, 2021, who work exclusively remotely due to COVID-19 precautions qualify for the extended flexibility. These employees are exempt from physical inspection requirements as they relate to Employment Eligibility Verification (Form I-9). As work moves to non-remote employment on a more regular basis, the flexibility will be terminated. The date of termination depends on the timing of the change in the work environment.

Green card holders or Lawful Permanent Residents (LPRs) who have been outside of the United States as a result of COVID-19 for more than 180 days have many questions on their ability to return to the U.S. We aim to address some of the issues here. As always, each person’s situation is unique, if you need advice for your particular case, please reach out to us. We are happy to help you.

The U.S. Customs and Border Protection and Department of State announced U.S. citizens will be able to return to the United States on expired U.S. passport starting May 21, 2021, through December 31, 2021, if they meet the below requirements:

1) are currently abroad seeking to return to the United States.
2) are flying directly to the United States, a U.S. territory, or have only short-term transit (connecting flight) through a foreign country on their return to the United States or to a U.S. territory.
3) have an expired passport that was originally valid for 10 years (or 5 years if the individual was 15 years of age or under when the passport was issued).
4) have an expired passport that is undamaged and in their possession.

The Department of Homeland Security officially vacated a regulation that would have altered the H-1B specialty occupation definition, provided greater restriction H-1B employees who are placed offsite, and added compliance obligations.

The vacatur is a response to a federal court ruling that set the regulation aside as the agency didn’t prove a good cause to eliminate the notice and comment rulemaking. This is a violation of the Administrative Procedures Act.

The regulation was never in effect, formally.

An order requiring green card applicants to have health insurance or show how they will pay for benefits is revoked. President Biden officially lifted the Trump Administration order. The original order was challenged in court and was not enforced.

President Biden stated the policy does not advance the interests of the U.S. and the expansion of access to affordable health care will not bar noncitizen entrants who immigrate lawfully.