Newsletter – December 2020

News RoomFebruary 23, 2022

Newsletter – December 2020

Senate Passes Amended Version of the Fairness for High-Skilled Immigrants Act

On December 2, the Senate passed an amended version Fairness for High-Skilled Immigrants Act of 2020 (S. 386 or “Senate bill”), which would eliminate the country cap for employment-based green cards, through unanimous consent. The bill’s House companion (H.R. 1044 or “House bill”), had previously passed by an overwhelming majority of 365-65 vote in July 2019. However, following the House bill’s passage in 2019, numerous Senators had put the Senate bill on hold until their objections were addressed. The Senate’s amended version is dramatically different compared to the House bill, and significantly strays from the original intent of green card per country quota relief. Some of the notable differences include:

  • Providing an 11-year phase out period for country-cap based green cards beginning on October 1, 2022. Under the House bill, there would be a 3-year phase out, which would set aside a percentage of green cards reserved for applicants that are not from the two most backlogged countries, effective immediately once the law is enacted.
  • Setting aside 4,400 EB-3 Green cards for nurses and physical therapists for 7 years.
    Capping H-1B and H-4 via holders (or those who held H-4 status in the last 2 years) to no more than 70% of all employed-based green cards during the first 9 fiscal years following enactment and 50% thereafter.
  • Prohibiting the adjustment of status of aliens previously affiliated with the military forces of China or the Chinese Communist Party.
  • Preventing children of temporary workers in the backlog from “aging out” who have filed an adjustment of status application.
  • Implementing H-1B reforms such as posting of H-1B jobs for new H-1Bs on a government website for 30 days, requiring employers to provide W-2s for every H-1B worker employed upon DOL request, charging employers a fee for LCA submission, expanding the DOL audit and investigation authority, etc.

Critics of the Senate bill have charged that the provision prohibiting many Chinese nationals from obtaining lawful permanent resident status includes xenophobic, exclusionary, and discriminatory language. Likewise, House members have expressed concern about some of the Senate’s changes. Both chambers will need to negotiate and agree on a final version before it is sent to the President. This must occur before the current Congressional session ends, and a new Congress takes office in January 2021. If not, the bill will need to “start over” and be reintroduced in the new Congress.

After the Senate made its amendments to S. 386, the American Immigration Lawyers Association (AILA) changed its position from “neutral” to “oppose.” AILA previously remained neutral on S.386/H.R. 1044 given that the Act would have mixed impact among different groups. However, with the Senate’s amendments, specifically those targeting Chinese nationals, AILA has now taken a position against the bill.

We heard yesterday that an attempt is being made to attach the Senate version to the must pass House spending bill that will be voted on this week to continue government funding. If this bill is inserted into such legislation, the opportunity to fix any of the most damaging aspects of the Senate bill would disappear. We recommend that all interested parties contact their Congressional or Senate representative, to pressure House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell to not place it in the spending bill. This issue is far to important to be simply shoved through onto a spending bill – it needs discussion and review lest we damage the immigration system further through inattention and a forced vote that members of Congress cannot afford to say no to.

We will continue to provide updates regarding the Fairness for High-Skilled Immigrants Act as they arise throughout the remaining days of the current Congressional session. If you want to contact Speaker Pelosi’s office or Majority Leader McConnell’s here is the relevant information:
Congresswoman Nancy Pelosi – (202) 225-4965 or Online Form
Senator Mitch McConnell – (202) 224-2541 or Online Form

DHS Confirms Significant Delays Receipting Petitions at Lockboxes

Most cases we file these days are initially reviewed and set up for processing by contract staff stationed at a “lockbox” office location. The month of October was unprecedented in terms of filing because of the sudden adjustment of status eligibility for thousands of foreign workers. This unusual filing spike combined with Covid-19 safety protocols has resulted in significant delays. Just today, USCIS released a statement saying the following:

  • The USCIS lockbox facilities have received a significant increase in filings in recent weeks. This increase, along with facility capacity restrictions necessary to protect the health and safety of the lockbox workforce during the COVID-19 pandemic, is causing significant delays for processing receipt notices. We continue to work to minimize delays. Once we process your submission, we will review your package.
  • If you properly filed your form, we will send a receipt notice to the mailing address provided on your form, normally within 30 days. If your submission is incomplete or improperly filed, we will reject it per current procedures.

It is actually the case that many cases are waiting six weeks or longer to receive a receipt notice (more so immigrant visa cases than non-immigrant – but both are delayed). We do expect to receive receipts for all cases currently filed and pending, and if something unusual happens, we will always notify our client of any update or change in situation.

DHS Announces Nine Month Extension of TPS for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan

On December 9, to comply with various preliminary injunctions and other court action, which enjoined the Department of Homeland Security (“DHS”) from implementing and enforcing the decisions to terminate Temporary Protected Status (“TPS”) for numerous countries, DHS automatically extended the TPS and related documentation for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through October 4, 2021 from the current expiration date of January 4, 2021. Employers may use the chart provided by USCIS or the Federal Register notice to determine which documents a current TPS beneficiary from the six impacted countries may present for I-9 employment verification purposes. It is imperative that employers timely, and correctly, update affected employees’ Forms I-9 to avoid fines and penalties. Please contact a member of our team if you have any questions regarding whether a TPS beneficiary’s status was auto-extended or require assistance with updating Forms I-9.

DHS Proposes to Expand Biometric Data Collection for Noncitizens

On November 20, the Department of Homeland Security (“DHS”) published notice of proposed rulemaking to develop and implement a comprehensive biometric entry-exit system that would collect biometric information from travelers entering and departing at US points of entry. Such a system, USCIS claims, would help identify travelers, prevent visa fraud, and prevent the usage of legitimate travel documents by imposters. Under the system, Customs and Border Protection (“CBP”) plans to photograph any aliens entering and/or exiting the United States and use facial recognition technology. Critics of the program are concerned it is yet another attempt by the current administration to throw barriers in the way of legal immigration, that it represents too far of an intrusion into the privacy of visitors to the U.S. and that it will be far too costly to implement and maintain.

CBP has noted that it is still in the testing phase to determine how best to implement the biometric entry-exist system for land and seaports of entry and private aircrafts. Once CBP moves forward with a large-scale implementation of the entry-exist system, it will publish a notice in the Federal Register that will provide specific details on the plan.

ICE Continues to Extend I-9 Flexibility for Remote Employers

On November 18, Immigration and Customs Enforcement (“ICE”) announced an extension of its temporary policy allowing remote employers to complete the remote inspection of I-9 supporting documentation until December 31, 2020. Employers are reminded that the physical presence requirement is only waived for workplaces that are only operating remotely. If there are employees physically present at a work location, in-person verification of identity and employment eligibility documentation must occur.

DHS and ICE will provide additional updates on their websites regarding when the flexibility will be terminated, and normal operations resume.

USCIS Announces the Extension of the Validity of Certain Forms I-797 for I-9 Verification

On November 11, United States Citizenship and Immigration Services (“USCIS”) announced an extension on the validity of certain Forms I-797 used for I-9 verification due to delays in Employment Authorization Document (EAD) issuance through February 1, 2021. Previously, the agency announced that it would accept Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an EAD as a Form I-9 List C #7 document even though the Notice states it is not evidence of employment authorization.
USCIS reminds employers that, for a notice to be acceptable, it must include a Notice Date from December 1, 2019 through and including August 20, 2020. In addition, the employee must present an acceptable List B identify document.

Please contact a member of our team if you have questions regarding I-9 verification using the I-797 as a result of USCIS’s EAD production delays.

Key Immigration Updates and What to Expect in 2021 With President Biden (Webinar)

Recently, Managing Partner, David Brown presented a webinar to discuss what we expect of a Biden Administration while also discussing recent updates in immigration law. With 2020 already capping off a tumultuous 4 years of immigration policy from the current administration, there has been more change in this field this past fall than ever seen before. As a result of recent changes, and more updates from the Biden transition team, our clients are still trying to understand the ever-changing landscape of business immigration.

In an effort to help dispel fiction, and ensure clients are in a position to start planning for 2021, David Brown will reprise his November webinar with important new updates from the last 30 days. In dissecting recent changes, and discussing the future of our field, David will highlight what employers can do now to prepare for anticipated changes. You won’t want to miss this opportunity to be prepared for 2021.

If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.

REGISTER HERE For December 17th

Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.

If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.

Don’t miss these opportunities to increase your knowledge on important immigration issues!

Thank you and we look forward to having you at the event.

Best Regards,

The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **