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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.

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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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WR Immigration News Digest

Policy Update: U.S. Visa Interview Waiver Eligibility Reduced to 12 Months On February 13, 2025, the U.S. Department of State implemented a policy change reducing the eligibility period for interview waiver (Dropbox) appointments from 48 months to 12 months. This change applies immediately and affects applicants submitting passports for visa renewal at consular locations, including those who scheduled appointments months in advance under the previous 48-month eligibility rule. Applicants who no longer meet the revised criteria must now schedule a new appointment for a consular interview. Impact: Global mobility teams should review upcoming visa renewals, identify affected employees, and assist with rescheduling consular appointments as needed. OFLC to Remove Older Records from FLAG System On February 14, 2025, the Department of Labor’s Office of Foreign Labor Certification (OFLC) announced that, starting March 20, 2025, records older than five years will be deleted from the Foreign Labor Access Gateway (FLAG) System. Deletions will be based on the final determination date recorded in FLAG. For example, cases with a final determination date of March 21, 2020, will be removed on March 21, 2025. OFLC advises stakeholders to download any records they wish to retain before they become eligible for deletion. Affected Programs: […]

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Student Visa Entry Suspended for Harvard University

On June 4, 2025, President Trump issued a proclamation suspending the entry of foreign nationals seeking to study or participate in exchange programs at Harvard University under F, M, or J visas. This policy took effect immediately and is set to last for six months, with the possibility of extension. The proclamation also directs the Secretary of State to consider revoking existing F, M, or J visas for current Harvard students who meet specified criteria. It does not apply to students attending other U.S. universities through the Student and Exchange Visitor Program (SEVP) and exempts individuals whose entry is deemed in the national interest. The administration cites national security concerns, alleging that Harvard has failed to adequately report foreign student conduct, protect research from foreign adversaries, and respond to on-campus threats. Specific focus is placed on alleged ties between Harvard and China, including financial contributions and joint research. Impact: While narrowly targeted, this move sets a precedent for institution-specific visa restrictions. Global mobility and immigration teams should prepare for broader enforcement trends, assess institutional partnerships and student data reporting practices, and support affected populations with clear guidance and contingency planning. WR Immigration is a full-service immigration law firm known worldwide […]

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