Immigrant Workers Who Report Labor Violations Will Be Protected Under This New Policy

Immigrant workers who are the victims of labor exploitation are often faced with a difficult choice: report the coercive conduct, or remain silent out of fear of retaliation and immigration consequences. Under a new Department of Homeland Security policy, noncitizen workers have been given a shield: a promise by ICE that any worker who comes forward to report labor abuses will be protected from deportation.

Under the new policy, announced on January 13, noncitizen workers who are either the victim of, or a witness to, any violation of labor rights can receive “deferred action,” temporary permission to remain in the United States legally. Deferred action also comes along with eligibility to apply for work authorization, which can ease a noncitizen’s transition to a new employment relationship.

This new process expands on other worker-friendly policies adopted by the Biden administration. In October 2021, Department of Homeland Security Secretary Mayorkas issued a memorandum ordering DHS to halt large worksite raids and instead to focus its efforts on targeting unscrupulous employers.

Taken together, these policies represent some of the strongest efforts by any presidential administration to protect vulnerable immigrants from labor exploitation.

Read more about the new policy at Immigration Impact.

Employers Seeking Foreign Workers Face Proposed Fee Hikes from USCIS

U.S. businesses, educational institutions, and health systems that use foreign workers expressed concern over proposed fee increases from U.S. Citizenship and Immigration Services. USCIS has not successfully updated its fees since 2016, but the latest proposal seeks to shift the ongoing cost of USCIS’s humanitarian mission to employers. Specifically, much of the proposed increase for employment-based visas is driven by a $600 asylum program fee on any Petition for Nonimmigrant Worker (Form I-129) and Immigrant Petition for Alien Workers (Form I-140). The Petition for Nonimmigrant Worker covers a number of temporary visa classifications, including the H-1Bs, Es, Ls, Os, and TNs, and the new fee would apply to initial petitions and extensions alike.

Those fee increases, if finalized, could have a significant impact on small businesses, nonprofits, and educational institutions that hire employees particularly on H-1B specialty occupation visas or sponsor workers for green cards. USCIS is mainly funded by its application fees rather than appropriations and has stated that the increases are necessary for maintaining the agency’s operations at a time of increased migration to the U.S.

The proposed fee increases are open to public comment through March 6, 2023.

Dep't of State Extends Interview Waivers for Certain Nonimmigrants

On December 23, 2022, the Department of State announced it would extend its policy to waive in-person interviews for certain nonimmigrant applicants (F, H-1, H-2, H-3, H-4, J, L, M, O, P and Q) through December 31, 2023. Applicants whose nonimmigrant visa (of any type) expired within 48 months are eligible when applying in their country of nationality or residence. DOS expanded its interview waiver policy in response to severe delays caused by consular closures due to COVID-19. Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview.

U.S. to Require Negative COVID Tests for Travelers from China

On December 28, 2022, the Center for Disease Control and Prevention (CDC) announced that on January 5, 2023, at 12:01 am, it will implement a requirement for a negative COVID-19 test or documentation of recovery for all travelers two years and older boarding flights to the United States that originated in the People's Republic of China (PRC), Hong Kong, and Macau. The purpose of the requirement is to slow the spread of COVID-19 in the United States, given the recent surge in cases in China and the lack of information being reported by China on this surge.

According to the announcement, beginning on January 5, 2023, travelers two years and older will be required to get a test (such as a PCR or antigen self-test) administered either by an authorized telehealth service or licensed provider no more than two days before departing from the PRC, Hong Kong, or Macau and a subsequent negative result. Passengers who tested positive more than 10 days before the flight can provide documentation of recovery instead of a negative result. Airlines will confirm the negative test result or documentation of recovery for all those boarding the flight.

The CDC provided the following additional information:

• The requirement applies to air passengers regardless of nationality and vaccination status.

• The requirement applies to persons traveling from the PRC via third-country transit and passengers connecting through the United States onward to further destinations.

• In addition to applying to direct flights from the PRC, travelers stopping through Incheon International Airport, Toronto Pearson International Airport, and Vancouver International Airport on their way to the United States will be required to provide a negative COVID-19 test if they have been in the PRC in the last 10 days, no more than two days before their departure to the United States.

• The Biden Administration chose these transit hubs because they cover a significant majority of travelers originating in the PRC, Hong Kong, and Macau. The announcement indicates that it will continue to monitor travel patterns and update this policy accordingly.

U.S. Mission to China Temporarily Suspends Visa Services Due to COVID-19 Surge

The U.S. Mission China announced on December 15, 2022, that due to operational impacts caused by the surge of COVID-19 infections across China, all routine visa services at the U.S. embassy and consulates in China are temporarily suspended. 

Specifically:

• U.S. Embassy Beijing and U.S. Consulate General Shanghai are providing passport and emergency citizen services only. 

• U.S. Consulates General Wuhan, Shenyang, and Guangzhou will only be providing emergency consular services until further notice.

The announcement stated that some visa appointments previously scheduled at U.S. Consulate General Shanghai will be preserved, but all other nonimmigrant visa and immigrant visa appointments at the embassy and consulates in China have been canceled. Applicants will be contacted if their visa appointment is impacted.

Per Mission China, they are advising nonimmigrant visa applicants to reschedule their appointments for a later date by following the instructions at https://www.ustraveldocs.com/cn/cn-niv-visaapply.asp.  Immigrant visa applicants with questions are advised to contact the IV unit through its online form found here: https://china.usembassy-china.org.cn/visas/immigrant-visas/immigrant-visa-unit-question/.

There is no indication of when visa services will resume. 

DHS Interim Final Rule Removes Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants

On December 12, 2022, the Department of Homeland Security (DHS) published an interim final rule (IFR) in the Federal Register, titled Removal of Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants. The rule became effective on the date of publication, December 12, 2022; you can read the rule at 87 FR 75891 (December 12, 2022)

According to a December 8, 2022 Broadcast Message from the Student and Exchange Visitor Program (SEVP), the rule was published to "remove obsolete information, correct typographical errors, update references and citations, and make minor clarifications to regulatory language. These changes are administrative, not substantive, and are necessary to eliminate confusion, improve clarity, and remove obsolete procedures and requirements used before the implementation of the Student and Exchange Visitor Information System (SEVIS) or during the transition to SEVIS. This rulemaking does not raise existing costs and places no additional burden on F and M students, J exchange visitors, SEVP-certified schools or designated programs."

The rule is being published as an interim final rule, which means it is immediately effective as of December 12, 2022, but also gives the public 30 days to submit comments despite the rule already being in effect. The Federal Register notice contains information on how to submit comments.

The amendments remove references to obsolete procedures meant for non-SEVIS schools in the 2003 transition to SEVIS, remove references to "the Service" (which denoted INS, the legacy Immigration and Naturalization Service), and make other updates that reflect the new structures of DHS and SEVIS. One positive semi-substantive change is that the SEVP will make permanent the current COVID policy that allows schools to collect electronic signatures on Form I-17.

Court of Appeals Remands DACA for Consideration of New Rule; Stay Remains in Place

On October 5, 2022, the Fifth Circuit Court of Appeals partially upheld a July 2021 district court decision finding that the original DACA program (established in 2012) was unlawful; however, the Fifth Circuit sent the case back for the district court to consider the Department of Homeland Security’s new 2022 DACA regulation, set to take effect at the end of this month. As a result of this ruling, existing DACA recipients retain their grant of DACA and are allowed to reapply for (and receive) renewal, but the government cannot grant new DACA applications. The Fifth Circuit reasoned that a district court is in the best position to review the administrative record in the rulemaking proceeding and to determine whether the court’s holdings as to the 2012 DACA memorandum fully resolve issues concerning the 2022 final rule. USCIS will continue to accept and process DACA renewal requests, and continue to accept but not process initial DACA requests.

The court ruling does not affect ICE’s enforcement policies. Like the earlier district court ruling, the appeals court ruling does not require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.

Reminders for DACA Recipients and Employers:

• DACA recipients with current, unexpired Employment Authorization Documents (EADs) continue to be authorized to work.

• Workers who already have DACA can continue to renew their DACA EADs.

• DACA recipients are not required to tell employers they have DACA.

• Employers are not required or encouraged to ask their employees or job applicants about their immigration status or whether they have DACA.

• Federal laws such as the Immigration and Nationality Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981 protect employees from employment discrimination based on several factors, including their citizenship, immigration status, national origin, and race. State and local laws may offer additional protections to workers.

• Firing employees who have the legal right to work, such as DACA recipients with EADs, based on their immigration status, national origin, or assumptions about these characteristics may violate federal, state, or local law.

This remand heightens the urgency for Congress to act immediately and protect Dreamers permanently.

Partner Karen M. Pollins Honored as Philadelphia "Lawyer of the Year" in Immigration by Best Lawyers

We’re proud to announce that Karen M. Pollins has been honored as the 2023 “Lawyer of the Year” in Philadelphia in Immigration Law by Best Lawyers in America©.  This honor is awarded to the individual lawyer with the highest overall peer-feedback for the practice area and region.

Jane W. Goldblum and Karen M. Pollins also have been recognized for their work in immigration in the 2023 edition of The Best Lawyers in America, the only purely peer-review guide to the legal profession.

 Congratulations to all the honorees, and thank you for the fantastic work you do for our clients!

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Recognition by Best Lawyers is based on peer review designed to capture the consensus opinion of almost 50,000 leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. 

 A leader in U.S. immigration law, Goldblum, Pollins and Dennis PC is dedicated to helping institutions and businesses of all sizes and types onboard and keep the foreign national talent they need to innovate, compete, and grow. We deliver top-tier knowledge and expertise, a client-focused approach to service excellence, and tech-led solutions to provide comprehensive immigration support for your global workforce.