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Immigration Update

Dec 20, 2021 | Immigration Updates

In this edition, find out more about the current state of the immigration provisions of the social spending bill, DHS’ extension of I-9 flexibility, the DHS’ announcement of suspension of employment authorization requirements for some F-1 students from Hong Kong, and more.

Immigration Provisions of Social Spending Bill in Limbo as Senate Democrats Struggle With Parliamentarian Rejections, Uncertainties

After the Senate parliamentarian rejected a plan that included work permits and protection from deportation favored by Democrats for inclusion in the “social spending” budget reconciliation bill, lawmakers struggled to consider their options, including revisions to the immigration provisions or simply moving ahead without parliamentarian approval. Several Democratic senators issued a joint statement: “We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act.”

The parliamentarian has not yet addressed other immigration provisions included in the social spending bill, such as green card backlog relief, and their fate remains uncertain.

Details:

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DHS Extends I-9 Flexibility to April 30, 2022

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification. The flexibility policy was set to expire December 31, 2021, but because of ongoing pandemic issues, DHS extended it until April 30, 2022.

DHS said that eligible employees working exclusively in remote settings are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If employees are physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation.

Employers are advised to monitor the DHS and ICE workforce enforcement announcements for updates on ending the extension and resuming normal operations. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire, DHS said.

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Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule; Issues 2022 Adverse Effect Wage Rates for H-2A Range, Non-Range Occupations

The Department of Labor’s Employment and Training Administration (ETA) published a final rule, effective December 13, 2021, implementing a federal district court order vacating a controversial January 14, 2021, final rule that was initially promulgated in October 2020. The rule amended ETA regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.

The new final rule removes the regulatory text that DOL initially promulgated and restores the regulatory text to appear as it did before.

The Department of Labor also published notices with the 2022 Adverse Effect Wage Rates (AEWR) for the employment of temporary or seasonal workers to perform range (herding or production of livestock) and non-range agricultural labor or services.

Details:

  • “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021), https://bit.ly/3yg4s3k
  • DOL notice (non-range), 86 Fed. Reg. 71282 (Dec. 15, 2021), https://bit.ly/3qbZNMn

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State Dept. Changes DV-2022 Document Submission Processing Requirements

The Department of State (DOS) announced that as of December 9, 2021, individuals who were randomly selected to participate in the diversity visa (DV) program for fiscal year (FY) 2022 only need to submit to the Kentucky Consular Center (KCC) the DS-260 immigrant visa application form for themselves and any accompanying family members. Once the DS-260 is received for all applicants associated with a case, that case will be eligible to be scheduled for a visa interview.

DOS said that DV-2022 selectees no longer must submit to the KCC any other required supporting documents for DV-2022 to be eligible for an in-person interview at an embassy or consulate. Rather, all supporting documents for DV-2022 selectees will be collected in connection with the interview and evaluated at the embassy or consulate where the visa application is made. DOS said it is treating this as a “pilot program” and will assess the costs and benefits later in the program year.

Details:

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DHS Announces Suspension of Employment Authorization Requirements for Some F-1 Students from Hong Kong

The DHS has announced that it is suspending certain regulatory requirements for F-1 nonimmigrant students who are Hong Kong residents (regardless of country of birth) and who are also undergoing severe economic hardship as a direct result of the current situation in Hong Kong.

Lawful F-1 nonimmigrant students may now request employment authorization from Nov. 26, 2021, through Feb. 5, 2023; work an increased number of hours while school is in session; and reduce their course load while continuing to maintain F-1 nonimmigrant student status.

Individuals must have been lawfully present in the United States in an F-1 nonimmigrant status on Nov. 26, 2021, to be eligible.

Details:

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Immigration Update

In this edition, find the latest news on the State Department’s update on visa options and alternatives for Ukrainian nationals, the immigration-related updates coming from the signing of the Omnibus Spending Bill, the expansion of the Credit Card Payment Pilot Program, and more!  State Dept. Releases Info for Nationals of Ukraine, U.S. Citizens in Ukraine  The Department of State (DOS) released information on March 11, 2022, for nationals of Ukraine to “further clarify visa options and outline alternatives to visas that Ukrainians may consider.” DOS noted that “a visa is not a viable way to achieve refugee resettlement in the United States.” DOS also recently released information for U.S. citizens in Ukraine. Highlights are below:  Among other things, certain persons from Ukraine can travel to the United States without a pre-departure COVID-19 test until April 1, 2022, under a national interest exception.  Humanitarian parole allows a person who may be inadmissible or otherwise ineligible for admission to be in the United States temporarily for urgent humanitarian reasons or significant public benefit. “It is not meant to replace a visa process,” DOS said. Those wishing to apply should contact USCIS.  Almost all refugee cases in countries abroad are processed by local […]

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Canada Alert: Significant Changes to Intra-Company Transfer Work Permits

Canada has just made significant changes to the requirements to qualify for an intra-company transfer (ICT) work permit. This will have a major impact on many companies seeking to employ foreign national workers in Canada. Note that workers who are citizens of a country that has a free trade agreement with Canada will not be directly impacted by these changes. A list of free trade agreement countries is included at the end of this alert. Exemption – Workers who are citizens (or permanent residents, where noted) of the following countries are exempt from these changes on the basis of free trade treaties with Canada, although it is possible that we will see some increased scrutiny on applications across the board: If you’d like to learn more, contact your WR Immigration attorney for guidance.

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