U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) Reviews Labor Condition Application (LCA) Wage Eligibility When Bona Fide Termination is Not Effectuated
A DOL ALJ discussed when an employer’s LCA obligation to pay its H-1B worker ends when the employer terminates the worker, the employer fails to effectuate the required “bona fide termination”, and the worker finds new employment. The ALJ concluded in Administrator, Wage and Hour Division v. Bitsofcode Software Systems Inc., that the employer’s wage liability continues until the employer “expressly” notifies the H-1B worker of the termination and until the new employer’s H-1B petition is approved (not just filed). Additionally, the ALJ concluded that an employer is liable for wages even if the H-1B worker is outside the US unless the employer can provide evidence that the worker’s international trip was voluntary or for the worker’s convenience.
H-1B Applicants File Motion for Preliminary Injunction in Lawsuit Challenging FY 2022 H-1B Lottery Cap Registration Rules
On July 27, 2021, several hundred H-1B visa applicants filed a motion for preliminary injunction in the U.S. District Court for the District of Columbia alleging that the cap registration rules and regulations that took effect on April 1, 2019 are unlawful on the grounds that DHS was rulemaking outside of its authority when it released the cap registration rules, because the rules prioritize H-1B lottery registrations and ignore the INA’s mandate to allocate H-1B visas by “alien” pursuant to INA §214(g)(1), (3), and (7). The plaintiffs also argue that DHS’ application of cap registration rules is “arbitrary, capricious, an abuse of discretion, and not in accordance with law, because the defendants have failed to examine and have ignored empirical evidence and data indicating that implementation of the FY2022 registration process would lead to fraud, abuse, and the likelihood of a second administration of the lottery.”
Iandoli, Desai, and Cronin P.C. will continue to monitor this lawsuit and provide updates when available.
USCIS Conducts Second Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations
On July 28, 2021, USCIS determined that additional registrations to the FY 2022 numerical allocations for the H-1B Cap were available and selected previously submitted electronic registrations using a random selection process. The petition filing period will begin on August 2, 2021, and close on November 3rd. Individuals selected will have their myUSCIS accounts updated to include a selection notice.
Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about filing the H-1B.
U.S. Land Border Restrictions on Travel from Canada and Mexico Extended Through August 21st
On July 22, 2021, the Secretary of Homeland Security announced that it will continue to temporarily limit the travel of individuals from Canada and Mexico at land ports of entry to “essential travel” until August 21, 2021. “Essential travel” includes:
U.S. citizens and lawful permanent residents returning to the United States;
Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
Individuals traveling to attend educational institutions;
Individuals traveling to work in the United States;
Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
Individuals engaged in official government travel or diplomatic travel
Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
Individuals engaged in military-related travel or operations.
State Department Expands Validity of National Interest Exceptions (NIE) to Regional COVID-19 Travel Bans
On June 29, 2021, the Department of State extended the validity of National Interest Exceptions (NIE) for foreign nationals subject to COVID-19-related travel restrictions. Unless otherwise indicated, existing NIEs will be valid for 12 months from the date of approval and for multiple entries if they are used for the purpose under which they were granted. This extension applies to travelers subject to these proclamations due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, Ireland, and India who currently have approved NIEs or who were granted NIEs in conjunction with a visa application.
Students holding F or M visas, or immigrant or fiancé visas already have been granted a NIE and need not apply for a NIE in advance from a U.S. consulate.
TPS Applicants from Five Designated Countries Can File Initial Applications Online
USCIS announced on July 21, 2021, that TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela, or Yemen, or individuals without nationality who habitually resided in one of those countries can now file Form I-821, Application for Temporary Protected Status, online, if they are applying for the first time. First-time TPS applicants can also concurrently file Form I-821 and Form I-765, Request for Employment Authorization online.
Temporary Protected Status (TPS) for Somalia and Yemen Redesignated and Extended for 18 Months
On July 6, 2021, Secretary of Homeland Security Alejando Mayorkas announced an 18-month extension and re-designation of Yemen for TPS through March 3, 2023. Current beneficiaries re-registering under the extension of TPS for Yemen must re-register in a timely manner during the 60-day registration period that runs from July 9, 2021, through September 7, 2021, to ensure they keep their TPS and work authorization without a gap. Eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from July 9, 2021, through the full length of the re-designation period. Applicants are also eligible to apply for TPS-related Employment Authorization (EAD) and for travel authorization.
On July 19, 2021, Secretary Mayorkas announced an 18-month extension and redesignation of Somalia for TPS for 18 months through March 17, 2023. Current beneficiaries re-registering under the extension of TPS for Somalia must do so in a timely manner during the 60-day registration period that will be announced in the Federal Register notice, to ensure they keep their TPS and work authorization without a gap. Eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that will run from the publication date of the Federal Register notice, through the full length of the re-designation period. Applicants are also eligible to apply for TPS-related Employment Authorization (EAD) and for travel authorization.
Designation of Temporary Protected Status for Haitians
On July 30, 2021, the Department of Homeland Security (DHS) posted an unpublished notice in the Federal Register to designate Haiti for Temporary Protected Status (TPS) for 18 months effective the date of publication in the Federal Register, through February 3, 2023. This includes approximately 55,000 current TPS Haiti beneficiaries, whose TPS-related documentation is automatically extended at least through October 4, 2021, in compliance with court orders. These individuals must file a new application for TPS under this designation to ensure they retain their status.
The new designation of Haiti for TPS also enables an estimated 100,000 additional individuals who have been continuously residing in the United States since July 29, 2021, to file initial applications to obtain TPS. In light of recent events in Haiti, including the July assassination of President Jovenel Moïse, Secretary of Homeland Security Mayorkas modified the cut-off date for eligibility from what was previously announced to now be July 29, 2021. Individuals who attempt to travel to the U.S. after July 29, 2021, will not be eligible for TPS and will be subject to expulsion or removal.
Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from August 3, 2021, through February 3, 2023. TPS applicants are eligible to file Form I-821 online. When filing a TPS application, applicants can also request an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization, with their Form I-821. Applicants may also submit Form I-765 online.
Rescheduling Biometrics Appointments
U.S. Citizenship and Immigration Services (USCIS) announced that biometric services appointments scheduled at a USCIS Application Support Center may only be rescheduled by calling the USCIS Contact Center (800-375-5283). Applicants must establish good cause for rescheduling and must call before the date and time of their original appointment to reschedule. If an applicant fails to call before the scheduled appointment or fails to establish good cause, USCIS may consider the application, petition, or request abandoned and, as a result, it may be denied. More information about preparing for your biometrics appointment can be found on the USCIS website.
Federal District Court Rules Against DACA Program
On July 16, 2021, the U.S. District Court for the Southern District of Texas declared the DACA program “illegal” and issued a permanent injunction prohibiting the government’s continued administration of DACA and its reimplementation as the program does not comply with the Administrative Procedure Act (APA). However, the Court temporarily stayed its order vacating the DACA memorandum and its injunction with regards to individuals who obtained DACA on or before July 16, 2021.
The Department of Homeland Security (DHS) will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization. DHS will continue to grant or deny renewal DACA requests, according to existing policy.
Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about the recent DACA ruling.