H-1B Filing Season: Time to Review Visa Status Expirations for Foreign National Employees

Contributed by Jacqueline Lentini McCullough, March 1, 2021

USA visa in a passport – travel background

With H-1B season upon us, it is time to review the visa status expirations for foreign national employees. There may be some who will need to change visa status to H-1B for continued employment with your company. For example, an F-1 international student who is employed based on his/her optional practical training may need H-1B sponsorship. Now is the time to see if anyone will need assistance with an H-1B petition. 

As you know, last year USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for their foreign national employees. If your company already has an account in the my.USCIS.gov database, you will only need to register any new foreign nationals for purposes of being selected to file an H-1B petition during the registration period. The registration period begins March 9th and closes March 25, 2021. Once the registration period is over, USCIS will then run a random selection process on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Following the selection process, employers will have a 90-day window to file  a petition for each registration selected. If insufficient H-1B cap-subject petitions are received by USCIS from the initial selected registrations then they may conduct a second lottery as was done in August 2020.

As we get closer to the H-1B registration dates, we will provide further guidance on the process of registering your foreign nationals. In order to meet the registration deadline, it is important to assess who among your foreign nationals will need a change of status to H-1B and will need to be registered in the government system as soon as possible.

URGENT: Workers Can Refuse Work and Receive Unemployment Benefits Due to COVID-19

Contributed by Steven Jados, February 26, 2021

unemployment claim form on desk

On February 25, 2021, the U.S. Department of Labor (DOL) announced three new categories of individuals eligible to collect federally-funded unemployment benefits as the COVID-19 Pandemic continues.  They are:

  • Individuals who refuse to return to work that is unsafe or to accept an offer of new work that is unsafe;
  • Certain individuals providing services to educational institutions or educational services agencies; and
  • Individuals experiencing a reduction of hours or a temporary or permanent lay-off.

These changes are expected to take effect in late March, but could take longer to take hold as each state must adopt and administer to this new guidance in order to receive the additional federal COVID-19 specific funding.

Focusing on the first category, it essentially creates an additional “good cause” reason for an employee to refuse work, but remain eligible for unemployment benefits in situations in which “[t]he individual has been denied continued unemployment benefits because the individual refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19.  This includes, but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.”

In order to obtain benefits under this provision, the DOL requires individuals to attest, under penalty of perjury, that they have been denied continued unemployment because they “refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19.  This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.” 

It is unclear exactly how it would be possible for, e.g., an applicant who never set foot on a worksite or an employee who had not been in the workplace since pandemic-related changes were implemented to credibly complete the attestation.

Beyond the attestation under perjury, specific standards and requirements will largely be left to the states.  Many states previously made clear that a generalized fear of COVID-19 in the workplace was an insufficient basis to refuse work and still receive unemployment benefits, and we anticipate many states will continue to require more than generalized fears when determining eligibility under this new DOL category.

The task for employers in light of this expansion is to demonstrate the safety and security of the workplace from a COVID-19 prevention and mitigation perspective.  Step one in that regard is, of course, to ensure that the business has enacted policies and procedures in-line with the most up-to-date guidance from the CDC and other federal, state, and local agencies.  Step two is to make clear to employees (1) what steps have been taken to improve health security in the workplace; (2) the fact that the business is vigilantly monitoring CDC and public health guidance and is ready to implement further protections in accordance with that guidance; and (3) that employees should feel free to express their questions and concerns to management regarding COVID-19 safety in the workplace without fear of adverse consequences or retaliation. This can take the form of e-mailed announcements and bulletin board postings for current employees. 

But for employees away from work because of pandemic-related concerns, more formal, written correspondence aimed at communicating how the business has directly resolved the employee’s concerns may be appropriate.  As always, we recommend drafting such correspondence with an eye toward an interactive process between the business and employee—and with guidance from experienced counsel. 

PREVAILING WAGE REMINDER: Local, State and Federal Prevailing Wage Obligations Vary Greatly

Contributed by Jeffrey A. Risch, February 25, 2021 – www.illinoisprevailingwage.com

Contractors, developers, architects, owners, project managers and even public bodies often ask the same obvious question when dealing with any type of prevailing wage ordinance or law, “what are my obligations?”  While everyone involved in public construction projects want to comply with prevailing wage mandates, more often than not those involved in such projects are either oblivious to their responsibilities or are mistaken in their belief as to such responsibilities. This is not surprising in light of the great variance in prevailing wage laws, related rules and interpretations of such rules and laws on a local, state and federal level.  It’s unfortunate that there is no set standard or guidebook on the subject. And, that’s the point of this alert! 

What a GC or subcontractor must do under California’s prevailing wage law is entirely different with respect to Illinois law. Likewise, what a developer or owner needs to ensure on a prevailing wage project under Ohio law is different than pursuant to New York mandates. There are also great variations in the types of forms required (including the certified transcript of payroll), written notifications and/or legal disclaimers, contract provisions, wage and fringe benefit responsibilities, actual rate determinations per trade and area, potential liabilities and actual compliance standards. These variations are controlled on a local and state level where prevailing wage requirements still exist.  For a summary of where state prevailing wage mandates still are in play, the U.S. Department of Labor’s quick summary is quite helpful:

Of course, federal prevailing laws (aka Davis Bacon & Related Acts – “DBRA”) must also be recognized.  While the general procedures and processes on federal DBRA projects are the same, what a particular federal contracting or financing agency will require can differ from agency to agency. 

With the above in mind, there are 7 basic rules for anyone dealing with construction projects that are financed, owned, controlled or benefiting (in whole or in part) a local, state or federal government agency or body:

  1. Know your legal obligations under any and every local, state or federal prevailing wage ordinance/law that applies to your business (note: what’s permissible under Federal Davis-Bacon may be unlawful under the Illinois Prevailing Wage Act);
  2. Ensure your business is complying with all applicable prevailing wage obligations for every worker, every day, every week, every job and utilize the certified transcript of payroll form required by the government agency or body at issue (i.e. don’t use the DBRA CTP form for local or state projects);
  3. Never allow a prevailing wage audit or investigation  to be closed or remain in limbo without some document that confirms your full compliance with your legal obligations (note: you may have to do this yourself by letter to the auditor or agency at issue);
  4. Never sign any settlement agreement concerning prevailing wage issues without first reviewing it with competent legal counsel to help ensure that no admission of liability or guilt is made and to expressly state that you are free and clear to bid and perform future public construction work;
  5. Educate your local units of government on who you are and highlight your good name and business reputation — get to know the public officials, get involved and form business relationships;
  6. Review your purchase orders, bid specifications and contracts to incorporate necessary prevailing wage notice obligations as well as certain disclaimers to ensure proper and/or mandatory notice obligations are in place; and
  7. Don’t rely entirely on a governmental agency’s internal staff or published FAQ’s or interpretive guidance on prevailing wage obligations — some are flat-out wrong and some don’t necessarily supply the most accurate information needed.

Prevailing wage audit and enforcement is becoming increasingly aggressive throughout much of the United States.  Any individual, business, contractor, developer, owner, architect, project manager or public body not intimately familiar and comfortable with applicable prevailing wage obligations is playing a dangerous game that could have a serious short and long term financial impact. 

Check Local and State Health Department Rules: Some Require Reporting of COVID-19 Cases

Contributed by Peter Hansen, Michael Wong and Sara Zorich, February 23, 2020

COVID-19 Screening Questionnaire form with medical mask and a pen on it.

A question that employers often ask when someone in the workplace reports COVID-19 symptoms or a positive test is, who is the employer required to notify? Typically common sense and CDC guidelines have been that employers must engage in contact tracing and notify individuals who were in “close contact” with the person. In recent months and weeks, local and state departments of public health have continued to issue guidance, and mandates, that employers must also identify and observe and sometimes try to interpret despite conflicting statements.

For example, in December 2020, the Illinois Department of Public Health (IDPH) revised its regulations to add COVID-19, SARS and MERS to the list of Class I(a) diseases that “shall be reported immediately (within three hours) by telephone, upon initial clinical suspicion of disease to the local health authority, which shall then report to the IDPH immediately (within three hours.) Ill. Admin. Code tit. 77, § 690.100. For context, Class I(a) diseases include Anthrax, Plague, Smallpox, and suspected bioterrorist threats or events. The reporting of Class I(a) diseases has historically been the responsibility of the hospital, physician or medical provider who treats or confirms an individual’s positive tests result for such a disease. However, the applicable regulation does have a catchall provision that places reporting responsibility on “Any other person having knowledge of a known or suspected case or carrier of a reportable communicable disease or communicable disease death.” Ill. Admin. Code tit. 77, § 690.200.  Taken together, these provisions arguably require employers who know of a “known or suspected case” of COVID-19 to immediately report the information to their local health authority.

To further complicate the matter, the IDPH updated its “Guidance for Employers and Employees on Workers’ Rights and Safety” webpage on or about January 7, 2021 to state the following:

“If two or more employees report having COVID-19 related symptoms or test positive for COVID-19, the employer must notify their local health department within 24 hours of being informed of the presence of COVID-19 symptoms or positive test results.”

This is a pretty significant change as it modifies the reporting from voluntary to mandatory and is unclear regarding the time period for the two cases occurring (e.g. whether it is two cases over 14 days, two months, or since March 2020). That said, under CDC guidelines for contact tracing and the guidelines of some local public health departments it is reasonable to view the applicable time period for determining whether reporting is required under IDPH regulations as a 14 day period.

To add further confusion, local public health departments may have a higher or lower standard. For example, the City of Chicago and Kane County, Illinois health departments still advise businesses that they may voluntarily report employees with symptoms or confirmed cases, but are not required to do so. While in others areas, like Winnebago County, Illinois, the local health department is telling employers that they are required to report when one (1) or more employee develops COVID-19 symptoms or receives a positive test result, and are requiring employers to submit information regarding their businesses and the individual(s) at issue (including their symptoms and demographics).

Ultimately, no matter the standard for reporting, the employer is required to cooperate with local public health authorities in the investigation of cases, suspect cases, outbreaks and suspect outbreaks. This is fairly consistent throughout the United States.

What happens if you do not comply with reporting or an investigation? – It depends on the state and local laws and regulations regarding the violations of public health laws, but generally violations can result in fines, criminal charges and even result in a business being temporarily closed down. For example, under Illinois law, failure to comply may result in a Class A misdemeanor and the IDPH and local health department have the ability to order a business be closed if it deems immediate action is required to protect the public.

BUT WHAT DOES THIS MEAN WITHOUT THE LEGALESE?

  1. Employers MUST be aware of what requirements or guidance their local public health department has regarding reporting cases of COVID-19 AND should take steps to comply with both the state and local requirement regarding reporting when employees are suspected or confirmed to have COVID-19.
  2. Documentation through COVID-19 Questionnaires for employees who report symptoms will become even more important. Questionnaires should include questions not only about what symptoms an employee has, but where the employee has been in the last 14 days; whether the employee or family members have interacted with individuals outside of their home for more than a cumulative 15 minutes in a 24 hour period; whether the employee or family members have visited stores or other locations within 10 or more people; etc.
  3. Employers should recognize the potential risks, which may include fines, criminal prosecution and even being shut down, when responding to state and local public health departments’ requests for additional information and investigations. Any concerns should be vetted through competent risk management consultants and experienced legal counsel.

Employers with Employees in California, Are You Ready to Report Your EEO Pay Data?

Contributed by Sara Zorich, February 19, 2021

State of California

In follow up to our previous blog, the March 31, 2021 deadline is quickly approaching for employers to provide their California Pay Data Report to the California Department of Fair Employment and Housing (DFEH). Required reporting applies to private employers who meet the following three (3) requirements: (1) 100 or more total employees, (2) required to file a federal EEO-1 report and (3) at least 1 employee in California. 

DFEH recently updated its FAQ’s related to the California EEO reporting requirements.  The FAQ’s, along with DFEH’s User Guide, make it clear that employers must carefully review their reporting requirements and data for submission. The DFEH User Guide notes that the California requirements are NOT the same as the previous EEOC proposed rules or the current Federal EEO-1 reporting requirements. The California Pay Data Report requirements have a number of significant differences employers must be aware of, for example:

  • Non-binary employees must be reported in California in the same manner as male and female employees.
  • An employee’s pay is reported from W-2 Box 5.
  • An employee’s hours worked in 2020 includes any hours the employee was on any form of paid time off for which the employee was paid by the employer (such as vacation time, sick time, or holiday time) during 2020.
  • Multiple-establishment employers must report all establishments, including those with fewer than 50 employees, in the same manner by providing the number of employees and total hours worked for each employee group assigned to the establishment. For example, for multiple-establishment employers with establishments inside and outside of California, the employer: (A) must report to DFEH on its California establishments, all of its employees assigned to those establishments (including any employees outside of California) whether or not teleworking, and any other California employee (including those teleworking from California but assigned to an establishment outside of California); and (B) may report to DFEH on its establishments and employees not covered by (A).
  • If an employee’s W-2 is corrected after the employer submits its California Pay Data Report to DFEH, and the correction would put the employee in a different pay band than originally reported or would otherwise require a correction on the employer’s report, the employer should promptly submit a corrected pay data report, identifying the corrected cells and explaining the correction in the remarks field(s).

As stated, the California Pay Data Report must be submitted by March 31, 2021.  In light of COVID-19, DFEH is allowing an employer to request a deferral of enforcement and if approved DFEH is providing the employer until April 30, 2021 to file its Pay Data Report. All requests for such deferral of enforcement must be filed with DFEH) no later than March 31, 2021.

In light of these new California reporting requirements and the similar currently pending legislation in Illinois, employers should proactively review and understand how their pay data would appear should they be investigated for pay disparity claims.

What President Biden’s American Rescue Plan Could Mean for Employers

Contributed by Suzannah Wilson Overholt, February 17, 2020

COVID-19 stimulus package, US dollar cash banknote on American flag

Congress is turning its attention to President Biden’s $1.9 trillion economic stimulus package, which is called the American Rescue Plan.  Because the package includes enhanced unemployment benefits that are currently set to lapse in mid-March, Congress is under pressure to take action by then.

The following aspects of the proposal have a specific impact on employers:

  • Restoration and expansion of emergency paid leave
    • President Biden has proposed reinstating and expanding the paid sick and family leave benefits passed as part of the Families First Coronavirus Relief Act (FFCRA) which expired in December. The proposal would reinstate those leave provisions through September. (Read more about the FFCRA leave requirements in our previous blog from March 2020).
    • The proposal expands the leave requirements to cover businesses with fewer than 50 and more than 500 employees, as well as first responders and healthcare workers, who could be exempted from the original leave requirements.  (The proposal would also grant leave to federal workers.) 
    • The government will reimburse employers with fewer than 500 workers for the full cost of providing the leave.
  • Restaurant industry:  The proposal includes the FEMA Empowering Essential Deliveries (FEED) Act that uses the restaurant industry to get food to families in need and helps get laid-off restaurant workers back to work. 
  • Minimum wage:  President Biden’s proposal includes raising the minimum wage to $15 an hour over four years and ending the tipped minimum wage and the sub-minimum wage for people with disabilities. Whether this will actually be considered by Congress as part of the stimulus package is uncertain.
  • Worker safety:  The proposal includes provisions regarding worker safety, which we addressed in a previous blog

Other aspects of the proposal that, while not being specifically workplace related, have an impact on workplace issues are as follows:

  • Vaccines and testing:  The proposal seeks $160 billion for vaccines, testing and related programs to fight COVID-19.  It includes $20 billion for a national vaccination program and $50 billion for testing.  Part of the funding would be directed to hiring public health workers to help administer vaccines and tests.  The goal would be for more people to be vaccinated faster, which should allow more employees to return to work and more businesses to re-open.
  • Extension of pandemic unemployment programs
    • President Biden has proposed increasing federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that Congress approved in December. 
    • The Pandemic Emergency Unemployment Compensation program, which applies to those who have exhausted their regular state jobless payments, and the Pandemic Unemployment Assistance program, which provides benefits to the self-employed, independent contractors, gig workers and certain people affected by the pandemic, would both be extended.
    • These payments and programs would be extended through September. Currently, they are set to expire in mid-March.
  • Child care: President Biden’s proposal creates an emergency stabilization fund for child care providers to allow them to re-open and stay open. It also contains additional funding to assist families with child care expenses. 

We will provide updates about the status of these proposals as they work their way through Congress.

Illinois Set to Enact New Law Limiting Criminal Convictions in Employment Decisions

Contributed by Allison P. Sues and Jeff Risch, February 15, 2021

Illinois has long limited employers from considering the criminal history of an applicant or employee in making employment decisions. The Illinois Human Rights Act prohibits employers from considering an employee’s arrest history, for example. In recent years, Illinois’ “Ban the Box” law disallows employers from asking about criminal convictions prior to a job offer or before a candidate is selected for an interview and, therefore, assumed to be otherwise qualified for the position in question. Now, Illinois is poised to go a step further in banning the use of criminal history in employment decisions. 

In January 2021, the Illinois legislature passed Senate Bill 1480, which, in relevant part, provides that unless otherwise authorized by law, an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Governor Pritzker now has this legislation “on his desk” and is expected to sign this bill into law soon. Upon signing this legislation, the law will go into effect immediately. The law amends the Illinois Human Rights Act.

An employer may show that an individual’s criminal conviction history has a substantial relationship to the position applied for, or currently held, if the position provides an opportunity for the individual to conduct the same or similar offenses.  Six different factors guide this analysis: (1) the length of time since the conviction, (2) the number of convictions that appear on the conviction record, (3) the nature and severity of the conviction and its relationship to the safety and security of others, (4) the facts or circumstances surrounding the conviction, (5) the age of the employee at the time of the conviction, and (6) evidence of rehabilitation efforts. 

As to the phrase “unreasonable risk,” it is not defined. However, this phrase certainly places the burden on the employer to establish that a risk exists that no reasonable employer in similar circumstances should incur.

If an employer denies employment to an applicant because of a conviction record, the employer must provide written notice to the applicant that specifically identifies the relevant conviction record underlying the decision and the employer’s rationale for why the conviction disqualifies the individual from employment. The employer must then give the applicant at least five (5) business days to respond to the employer’s notice and provide evidence to refute the employer’s concern. If the employer still decides not to hire the individual, the employer must provide another written notice informing the candidate of their right to file a charge of discrimination with the Illinois Department of Human Rights. This same process must be used for employers taking adverse action against existing employees based on criminal convictions.

While this law would not restrict employers from running criminal background checks on applicants or employees, it clearly creates additional hurdles. In reviewing the laws created in other states, Illinois’ new law would be the most restrictive in the country.  Employers must not only justify any actions taken based on a criminal conviction under the Act’s two exceptions, but must also comply with the written notification requirements. 

Be assured that SmithAmundsen LLC’s Labor & Employment Group is working with business groups to try and create better and clearer language relating to this legislation. We are intimately familiar with that process, and will report as soon as we learn more. In the meantime, all employers hiring or operating in Illinois must tread carefully in navigating all aspects of conducting a criminal background check.

OSHA’s Latest COVID-19 Guidance

Contributed by guest author Matthew Horn, February 10, 2021

In response to an executive order signed by President Biden, OSHA recently issued updated COVID-19 guidance recommending that all employers adopt a formal COVID-19 prevention plan, incorporating the following activities and elements:

  • Conducting a hazard assessment relating to COVID-19 exposure;
  • Identifying control measures to limit the spread of COVID-19 (such as distancing, masks, barriers, work-from-home, staggered shifts, etc.);
  • Adopting policies that encourage sick workers to stay home and not come into work;
  • Communicating and training employees on the policies and procedures implemented (in their native languages); and
  • Implementing protections from retaliation for workers who raise COVID-19 related concerns and issues.

Also note that the updated guidance advises employers to continue to require all employees — even those who have been vaccinated — to comply with all control measures, including the wearing of masks and social distancing, stating “there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

While OSHA rightfully acknowledges that these recommendations do not create new standards or regulations, employers should comply with them nonetheless, with the expectation that OSHA will enforce these recommendations by way of the OSHA General Duty Clause or some other, existing standard. Further, these recommendations will likely become standards within the next thirty days, given the recent executive order directing OSHA to issue any emergency COVID-19 standards by March 15, 2021. We will continue to update you on all developments as that deadline approaches.   

Union Friendly PRO Act Reintroduced in Congress: Seeks to Revolutionize Labor Law Throughout the U.S.

Contributed by Michael Hughes, February 8, 2021

“Union” in block letters

The mis-named Protecting the Right to Organize Act (PRO Act) was reintroduced in the U.S. Congress on February 4, 2021. The PRO Act, which originally was introduced in 2019 and passed the House of Representatives in 2020, would completely change the landscape in the labor-relations world. You may recall that our recent blog post advised that reintroduction of the PRO Act likely was a priority of the Biden Administration and the revamped U.S. Congress.

Billed by Democrats as legislation to support workers’ rights, the PRO Act is less worker-friendly than Union-friendly. If passed, the PRO Act would overhaul the National Labor Relations Act and make it easier for unions to organize more employees, remove most restrictions on union strikes and other union pressure tactics, weaken employers’ ability to resist unionization, and provide massive fines and penalties on employers who violate the law. While the bill’s wholesale passage in the Senate may be unlikely (unless Democrats move to eliminate the filibuster), many of its terms likely will find their way into other pieces of legislation.

Among the more drastic provisions of the proposed legislation are the following:

Organizing / Elections

  • Expands which workers unions can organize (to include many who currently are considered independent contractors and supervisors)
  • Erodes the secrecy of employee ballots and increases risk of fraudulent elections by giving the union the sole determination over the manner the election is to be conducted (mail ballot, electronic, off-site or on-site elections)
  • Allows unions who lose elections, if they allege an unfair labor practice by the employer affected the election, to resort to an after-election card check to win representation rights

Collective Bargaining

  • Bans all state right-to-work laws
  • Provides for “interest arbitration” if the employer and union cannot quickly agree to terms of an initial collective bargaining agreement—meaning a slate of arbitrators would decide wages, benefits and other contract terms
  • Allows “hot cargo” agreements, where unions can demand that employers do not do business with other, non-union companies
  • Bans employers’ ability to withdraw recognition from a union, even upon evidence that all employees want the union out

Strikes / Picketing / Construction Sites

  • Allows “secondary” strikes and boycotts, meaning the union can strike against employers/companies that it does not have a dispute with, in order to force them to stop doing business with non-union companies (this would allow ANY and ALL picketing at construction sites, without regard to reserved gates, effectively allowing unions to halt construction)
  • Allows partial strikes, intermittent strikes, and slow-down strikes
  • Allows strikes in jurisdictional disputes between rival unions
  • Removes all time limits on picketing for recognition
  • Bans employers’ ability to lockout employees, unless they go on strike first

Damages / Fines

  • Civil fines up to $50,000 for any unfair labor practice (doubled for repeat offenders)
  • Requires employers to re-hire employees, pending resolution, if union alleges discharge was unlawful
  • In discharge cases, in addition to back pay, would allow for front pay, liquidated damages (2x amount of back pay), consequential and punitive damages
  • $10,000 daily fine for non-compliance with an NLRB order
  • PERSONAL liability for company directors and officers
  • Provides employees with the right to sue employers in court, even if the NLRB dismissed their charge

As stated, currently it is unlikely that the PRO Act would overcome a senate filibuster by Republicans to be passed wholesale. We will monitor any developments in this legislation, or attempts to include certain aspects of the PRO Act within other legislation and keep employers informed on this blog. Please note, the Biden administration also is moving quickly to appease its labor union constituents in other ways. Aside from reintroduction of the PRO Act, on his very first day in office, President Biden fired NLRB General Counsel Peter Robb, whose term was not set to expire until November 2021. In his tenure, Mr. Robb pressed policies that labor leaders saw as too employer-friendly. The NLRB Acting General Council named by President Biden already has issued guidance overturning several policy provisions previously enacted by Robb. President Biden also nominated Boston Mayor, Marty Walsh, former head of the Boston Building and Construction Trades Council and Local Union President as Secretary of Labor. Mr. Walsh appears headed for confirmation.

Biden Changes Immigration Outlook, H-1B Visa Details TBD

Contributed by Jacqueline Lentini McCullough, February 3, 2021

Immigration Law books with a gavel on desk in the library.

 Last November I mentioned that the Trump Administration enacted over 400 immigration policy changes during its tenure. The changes added burdens to visa petitions, delayed processing, and made life more challenging for everyone in the immigration community.

Executive Order Highlights

President Biden signed a slew of prepared executive orders when he took office. Some of the orders that affect the immigrant community include:

  • the preservation and plans to “fortify” the Deferred Action for Childhood Arrivals (DACA) program;
  • cessation of border wall construction; and
  • a halt to former President Trump’s plan to exclude noncitizens from the census and the apportionment of congressional representation.

President Biden used his executive orders to stop or reverse President Trump’s executive orders, but knew that to make more permanent changes to U.S. immigration policy he would need legislative support. He delivered his bill, the U.S. Citizenship Act of 2021, to Congress on his first day seeking those changes.

U.S. Citizenship Act of 2021

This bill would modernize the country’s immigration system with a major overhaul. The new system would provide a path to citizenship for undocumented immigrants and reform both family-based and employment-based immigration policies.

Dreamers, Temporary Protected Status (TPS) holders, and farmworkers could apply for green cards immediately and for citizenship after three years. Other unauthorized immigrants could apply for temporary legal status immediately, for green cards after five years, and for citizenship if they qualify three years later.

The bill would eliminate the 3-year and 10-year unlawful presence bars that kept families apart. Measures would be put in place to eliminate family-based immigration backlogs, to reduce wait times, and to recapture lost visas.

Similar measures would occur for employment-based immigration to eliminate backlogs, reduce wait times, and recapture lost visas. H-1B holders’ spouses would get employment authorization and their children would be protected from aging out of the system.

The H-1B 2022 Filing Season

The Biden administration will need time to review individual policies and procedures to make further changes. This applies to the upcoming H-1B lottery.

We don’t yet know if USCIS will stay with the March 1 lottery application deadline used last year, or push the deadline later. We suspect they will use the electronic filing system instituted last year because we have not heard otherwise and it seemed to go smoothly. But we don’t know.

We are waiting to hear what the administration will do with the regulation for higher wages to be favored in the employer registration selection system, which was issued on January 8, 2021 and is slated to go into effect on March 9.

Despite all this uncertainty, the H-1B lottery will happen this spring.