employment authorization

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On October 30, 2020, Proskauer filed an amicus brief on behalf of 25 leading colleges and universities in support of a preliminary injunction sought by the U.S. Chamber of Commerce in the Northern District of California against Interim Final Rules issued by the U.S. Departments of Homeland Security and Labor. The new Rules substantially restrict eligibility for the H-1B, H-1B1, E-3, EB-2, and EB-3 visa programs relied upon by academic institutions to employ thousands of highly skilled international workers. In doing so, the new Rules will negatively impact workers who, through the universities and academic medical centers that employ them, provide critical contributions to the research that drives our nation’s scientific progress, public health, and economic vitality.

The amicus brief gives voice to academic institutions that were previously unable to make their concerns known because DHS and DOL issued the Interim Final Rules on October 8, 2020 without providing the required notice-and-comment period under the Administrative Procedure Act. The DOL Rule went into effect immediately and the DHS Rule is effective on December 7, 2020.  Had there been an opportunity for these institutions to provide comments regarding the Rules, the agencies would have been required to consider the irreparable harm that the Rules will cause to international workers, who are educating our nation’s students and performing research on COVID-19, cancer, diabetes, heart disease, and other key areas in science and medicine.

In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications.  By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.

The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application.  This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays.  The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.”  But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs.