Corporate Immigration Law News

On January 25, 2021, President Biden issued a Presidential Proclamation maintaining travel restrictions on individuals from the Schengen Area, U.K., Ireland, and Brazil. This Proclamation further adds restrictions on individuals from South Africa and reiterates that previous restrictions implemented by the Trump Administration remain in effect for China (Proclamation 9984) and for Iran (Proclamation 9992).

More specifically, this Proclamation restricts and suspends the entry into the United States, as immigrants or nonimmigrants, of noncitizens of the United States who were physically present within the Schengen Area, the U.K. (excluding overseas territories outside of Europe), Ireland, Brazil, and South Africa during the 14-day period preceding their entry or attempted entry into the United States.

For additional details click here.

If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

On January 14, 2021, the U.S. Department of Labor (“DOL”) published its final rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, which affects the prevailing wages of H-1B, H-1B1 and E-3 nonimmigrant visa classifications and permanent labor certifications (PERM applications) for employment-based 2nd preference (EB-2) and 3rd preference (EB-3) applications. The final rule will go into effect on March 15, 2021, but its implementation will occur in transitions beginning June 30, 2021. According to the DOL, such final rule is required to “allow the Department to more effectively ensure the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.” 86 Fed. Reg. 3608 (January 14, 2021).

This rule was initially published as an Interim Final Rule (“IFR”) that was immediately effective on October 8, 2020, but was struck down on December 1, 2020 along with the Department of Homeland Security (“DHS”) IFR that amended the requirements for H-1B classification. The DOL IFR dramatically increased prevailing wage levels, where Level 1 wages increased from the 17th percentile to the 45th percentile; Level 2 wages increased from the 34th percentile to the 62nd percentile; Level 3 wages increased from the 50th percentile to the 78th percentile; and Level 4 wages increased from the 67th percentile to the 95th percentile. 85 Fed. Reg. 63872 (October 8, 2020).

On December 1, 2020, in Chamber of Commerce et al. v. DHS, et al., the U.S. District Court for the Northern District of California set aside the DOL and DHS IFRs, stating that they were issued in violation of the Administrative Procedure Act (“APA”). In addition, on December 14, 2020, in Purdue University, et al. v. Scalia, et al., the U.S. District Court for the District of Columbia ordered the DOL to reissue prevailing wage determinations using the prevailing wage levels that existed on October 7, 2020, finding that the IFR violated the APA. The DOL republished the pre-IFR prevailing wage rates on December 9, 2020.

In its January 14th final rule, the DOL made amendments to the IFR, which it claims now meets the requirements of the APA stating “The Department is satisfied that it meets the APA’s objective requirements necessary for the promulgation of a final rule in this case. Specifically, the Department’s IFR provided sufficient notice to the public by allowing for a 30 day comment period; “gave interested persons an opportunity to participate in the rule making through submission of written data, views or arguments”; the rule contained a “concise general statement of their basis and purpose”; and the rule will be published more than 30 days before it becomes effective.” 86 Fed. Reg. 3612 (January 14, 2021).

See table illustration and additional details here.

If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

Hours before it was set to expire, the Trump Administration extended Presidential Proclamation 10052, suspending the issuance of certain nonimmigrant visas at U.S Consulates around the world.

More specifically, such Proclamation effects individuals who are currently outside the United States, and do not already possess a valid nonimmigrant visa (valid as of June 22, 2020, or earlier). Such individuals may not be issued a visa in the following nonimmigrant visa classifications:

a. H-1B or H-2B (including H-4 dependents);

b. J-1, interns, trainees, teachers, camp counselors, au pairs, or summer work travel program participants, (including J-2 dependents); and

c. L -1 (including L-2 dependents)

The suspension on entry to the U.S. does NOT apply to:

a. Any lawful permanent resident of the United States;

b. Any alien who is the spouse or child, of a United States citizen;

c. Any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and

d. Any alien whose entry would be in the national interest.

Originally signed on June 22, 2020 (and valid as of that date), the restriction on nonimmigrant visa issuance was set to expire on December 31, 2020 at 11:59pm, and is now extended through March 31, 2021.

This Proclamation does not affect extensions of stay or changes of status filed with the USCIS Service Centers in the above referenced nonimmigrant visa categories.

Our continued advice to all nonimmigrant visa holders in the United States is to avoid non-essential travel as we cannot guarantee there won’t be any adverse decisions by border officers, even in the case of individuals who are currently permitted to travel and re-enter the U.S.  We also cannot guarantee that significant changes will not occur while an individual is outside the U.S. which may preclude their re-entry to the U.S.

Please note that the new incoming Federal Administration will have the authority to reverse the above described restrictions at any point and, as such, the extension of such restrictions may not remain in place throughout its currently defined duration.  We will continue to provide updates and developments as they become available.

If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.