All Aboard the U.S. Immigration Merry-Go-Round!

Dickinson Wright
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Dickinson Wright

It’s becoming clichéd at this point to start off saying that 2020 has been an almost unbelievably, non-stop, surprise-filled year, in nearly all aspects of our lives. That’s particularly true for US immigration, but not necessarily only because of the COVID-19 pandemic and its effects on business and the economy.

On top of the pandemic, the current Administration has attempted to take an unprecedented number of Executive Branch actions to restrict or hinder employer access to the legal US immigration system. Many of those actions have been successfully challenged in the courts, but others remain in place for now. And, the pace at which the Administration is issuing new Executive Orders or promulgating new regulations in this space has been increasing in the 2nd half of 2020.

Here below are some of the more recent, significant developments, which companies should be following closely:

  • On June 22nd, President Trump proclaimed a ban on the issuance of the highly popular H-1B Professional Worker and L-1 Intracompany Transfer temporary work visas. The ban was recently enjoined by a federal court from being enforced against a large group of US employers, including members of the US Chamber of Commerce and National Association of Manufacturers, but continues to cause problems for other US employers.
  • Next, apparently frustrated at Congress’ refusal to approve additional, emergency funding for the US Citizenship and Immigration Services (USCIS) agency, on August 3rd, the Department of Homeland Security (DHS) sought to implement large, across-the-board, increases to the application filing fees it collects. However, those changes were very quickly put on hold by a federal judge, who cited serious concerns with the legality of the new fees and the manner in which they were proposed.
  • August also brought news from the USCIS of a bizarre relaxation of I-9 rules for employers, triggered by the agency’s apparent inability to manufacture previously approved Employment Authorization Documents; something which is normally a routine, largely clerical process, following the approval of an application for work authorization filed months earlier.
  • We did see some partial reopening of US consulates and embassies around the world in August – September, including guidance on how foreign nationals stuck abroad could finally attempt to schedule “national interest exception” visa appointments and travel permission requests, especially for people whose presence in the US would help to bolster the economic recovery here. Unfortunately, the favorable application of those new rules has been highly sporadic and arbitrary, with approvals at one consulate being declined at another consulate, based on nearly identical facts.
  • Most recently, on October 8th, both the DHS and the DOL published highly controversial new regulations, seeking to dissuade employers from using the H-1B temporary work visa system. The DOL action is already the subject of at least three separate federal lawsuits; and the DHS is expected to be similarly sued shortly.
  • Finally, on October 19th, the USCIS increased the application filing fee for its Premium Processing, expedite service from $1440 to $2500. Despite the extra $1000 per expedite request, it also wanted to increase the turn-around time from 2 to 3 weeks, but luckily that timing provision was halted by the federal injunction order mentioned above.

Despite the uncertain economic climate and the ongoing COVID-19 pandemic, labor markets are still extremely tight in many sectors and industries. Hence, employers will no doubt continue to have to resort to sponsorship of high-skilled foreign workers to fill their critical position openings, in order to stay productive and competitive in 2021. Given that there have been no substantive changes in the US immigration laws from Congress in the past several years, all of these questionable Executive Branch actions will simply continue to confuse and unfairly burden employers accessing the legal immigration system. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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