The status of Trump’s H-1B rules now that Biden is in office

Forbes has posted a great article explaining the status of Trump’s H-1B rules under the Biden administration. 

“During its four years, the Trump administration inflicted most of its immigration damage on businesses and high-skilled foreign nationals through memos, executive orders and proclamations. Near the end, Trump officials published two regulations to restrict H-1B visas and prepared a third rule for publication. Businesses, universities and H-1B professionals now wonder what the start of the Biden administration means for the fate of these three Trump-era H-1B rules.

One indication as to the fate of these rules came on Joe Biden’s first day. A January 20, 2021, memorandum sent by White House Chief of Staff Ronald A. Klain asked executive departments and federal agencies to postpone rules for 60 days that ‘have been published in the Federal Register . . . but not taken effect.’ The memorandum adds: ‘For rules postponed in this manner, during the 60-day period . . . consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules. As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.’

For rules not yet published, the memorandum states, ‘With respect to rules that have been sent to the OFR [Office of the Federal Register] but not published in the Federal Register, immediately withdraw them from the OFR for review and approval . . .'”

Continue Reading at Forbes.com

The U.S. Citizenship Act of 2021

President Biden is sending a bill to Congress on day one to “restore humanity and American values to our immigration system” per the press release.

Some highlights of the bill are set forth below. Exactly how these provisions will be implemented is not yet known.

Create an earned roadmap to citizenship for undocumented individuals. The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes.

Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.

Keep families together. The bill reforms the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.  It also eliminates the so-called “3 and 10-year bars,” and other provisions that keep families apart. The bill further supports families by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families. It also provides protections for orphans, widows, children, and Filipino veterans who fought alongside the United States in World War II. Lastly, the bill allows immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.

Grow our economy. This bill clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps. The bill makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States; improves access to green cards for workers in lower-wage sectors, and eliminates other unnecessary hurdles for employment-based green cards.

The bill provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the system.

The bill also creates a pilot program to stimulate regional economic development, gives DHS the authority to adjust green cards based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.

“Incentivizes higher wages for non-immigrant, high-skilled visas” is concerning, as DOL just issued a final rule that increases prevailing wages and DHS issued a rule on a wage-based H-1B CAP lottery selection process. The Biden-Harris Administration is planning to issue a regulatory freeze on Trump’s “midnight regulations” that he issued in his final days, which should include these new H-1B rules. We will closely monitor actions and updates.

Expansion of Nonimmigrant Visa Interview Waiver Eligibility

Department of State announced that it has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification to those whose nonimmigrant visas expired within 24 months. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver. This policy is in effect until March 31, 2021.

DACA UPDATE: USCIS must accept new DACA applications

A federal judge ruled Friday (12/4/2020) that the Trump administration must fully restore the so-called Dreamers program that protects undocumented immigrants brought to the U.S. as children, opening the door to new applicants for the first time since 2017.

USCIS will again accept first-time requests for consideration of deferred action under DACA based on the terms of the DACA policy in effect prior to September 5, 2017. USCIS will also accept DACA renewal requests; applications for advance parole documents; extend one-year grants of deferred action under DACA to two years; and extend one-year EADs under DACA to two years.

Good H-1B News Update!

The interim final rule by the Department of Labor increasing H-1B and labor certification wages which went into effect on October 8, 2020 AND the Interim Final Rule significantly changing the standards for H-1B “specialty occupation” which was to take effect on December 7, 2020 have been set aside by the U.S District Court, Northern District of California, in the matter of Chamber of Commerce v. DHS. This could not be more welcome news!

DOL will now have to revert its wage database back to reflect the wages prior to the implementation of the wage hike rule. At this time, it is not known if DOL/DHS will appeal the court’s decision.  The judgment applies universally and not just to the parties to the litigation.

NEW NATURALIZATION CIVICS TEST

U.S. Citizenship and Immigration Services announced on November 13, 2020 plans to implement a revised version of the naturalization civics test. The agency first announced plans to revise the civics test in July 2019.

The civics test is administered to applicants who apply for U.S. citizenship and is one of the statutory requirements for naturalizing. Applicants who apply for naturalization on or after Dec. 1, 2020, will take the updated version of the test. Those who apply before Dec. 1, 2020, will take the current version of the test.

“USCIS has diligently worked on revising the naturalization test since 2018, relying on input from experts in the field of adult education to ensure that this process is fair and transparent,” said USCIS Deputy Director for Policy Joseph Edlow. “Naturalization allows immigrants to become fully vested members of American society, with the same rights and responsibilities as citizens by birth, and offering a fair test, which prepares naturalization applicants for these responsibilities, is of upmost importance to our agency.”

The revised test includes more questions that test the applicant’s understanding of U.S. history and civics, in line with the statutory requirements, and covers a variety of topics that provide the applicant with more opportunities to learn about the United States as part of the test preparation process. The revised test will not change the passing score, which will remain at 60%. Candidates must answer 12 questions correctly, out of 20 in order to pass.

USCIS will maintain the current guidelines for statutorily established special considerations for applicants who are 65 years old or older and have at least 20 years of lawful permanent resident status. These applicants will be asked 10 questions and must answer a minimum of six questions correctly in order to pass.

The test items and study guides can be found on the Citizenship Resource Center on the USCIS website. USCIS has also updated the USCIS Policy Manual (PDF, 323.82 KB) accordingly; see Volume 12, Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing.