ABIL Immigration Insider • May 2, 2021

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In this issue:

1. President Biden Suspends Entry of Noncitizens/Non-LPRs Traveling From India; U.S. Mission in India Announces Limits on Visa Services – President Biden has issued a proclamation suspending the entry of non-U.S. citizens who were physically present within India during the 14-day period preceding their entry or attempted entry into the United States, with some exceptions. The proclamation takes effect May 4, 2021.

2. State Dept. Announces Global National Interest Exceptions to COVID-19 Travel Restrictions – Students seeking to start studies in the fall, certain academics, journalists, and individuals who provide critical infrastructure support in countries affected by a geographic COVID-19 restriction may now qualify for a national interest exception.

3. Supreme Court Rules in Favor of Relief for Long-Term Noncitizen U.S. Resident Removed From United States – The U.S. Supreme Court ruled on April 29, 2021, that “[n]onpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years.”

4. USCIS Reverses Trump Policy, Instructs Adjudicators to Resume Granting Deference to Prior Determinations in Petition Validity Extension Requests – Effective immediately, U.S. Citizenship and Immigration Services updated its policy guidance to generally restore its 2004 instructions directing officers to defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition.

5. State Dept. Announces Tiered Immigrant Visa Prioritization – On April 30, 2021, the Department of State announced a tiered prioritization approach to “triage” immigrant visa applications in light of reduced operating capacity as a result of the COVID-19 pandemic.

6. SSA Ends “No-Match” Letters – The Social Security Administration has ended the practice of sending employers “no-match” letters, called Employer Correction Request Notices.

7. DHS to Make Additional 22,000 Temporary Non-Agricultural Worker Visas Available – In light of increased labor demands, the Department of Homeland Security announced a supplemental increase of 22,000 visas this fiscal year for the H-2B Temporary Non-Agricultural Worker program. DHS said the additional visas will be made available in the “coming months” via a temporary final rule.

8. President Biden Orders CBP, ICE to Change Terminology – According to reports, under orders of the Biden administration, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement issued memoranda to their employees to stop using certain terms (e.g., “illegal alien”) and replace them with others.

9. DHS Provides Relief for Venezuelan and Syrian F-1 Students – The Department of Homeland Security has suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Venezuela or Syria.

10. DHS Rescinds Civil Penalties for Failure to Depart – A DHS statement said the fines “were not effective and had not meaningfully advanced the interests of the agency.”

11. State Dept. Issues Final Rule Changing Certifying Authority for Graduate Medical Education – Effective May 19, 2021, the Department of State is changing the certification authority for noncitizen physicians from the American Board of Medical Specialties (ABMS) to the Accreditation Council for Graduate Medical Education (ACGME).

12. State Dept. Updates Travel Advisories Due to Ongoing Pandemic – The Department is warning travelers against going to “approximately 80% of countries worldwide.”

13. DHS Corrects Deadline for Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies – The correction notice says comments are due May 19, 2021.

14. President Biden Will Raise Refugee Cap Following Backlash – President Biden plans to raise the cap on refugees for FY 2021 by May 15, 2021. The announcement followed a backlash after he announced originally that refugee admissions this fiscal year would be kept at 15,000.

15. President Biden Picks Nominees for USCIS, CBP – President Biden has chosen Ur Jaddou to lead U.S. Citizenship and Immigration Services and Chris Magnus to lead U.S. Customs and Border Protection.

16. F-1 Students Seeking OPT Can Now File Form I-765 Online – USCIS announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of several categories.

17. State Dept. Releases FAQ on Immigrant Visa Backlog and Consular Processing – The Department said it is committed to decreasing the backlog by “prioritizing certain visas, creating efficiencies in the visa process, and utilizing all available resources until our task is accomplished.”

18. DHS Seeks Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies – DHS seeks comments from the public on how U.S. Citizenship and Immigration Services can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits.

19. State Dept. Updates Visa Services Guidance, Policy on National Interest Exceptions for Regional COVID Proclamations – The Department of State recently released several updates.

20. Attorneys, AILA Sue State Dept. for Unlawfully Refusing to Issue Visas Due to Certain Travel Bans – Attorneys Jeff Joseph of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, along with the American Immigration Lawyers Association, filed a complaint on behalf of scores of plaintiffs against the Department of State and Secretary Antony Blinken, alleging that the agency has unlawfully relied on certain travel bans in refusing to issue visas.

21. OFLC Announces New Application for Prevailing Wage Determination – The Department of Labor’s Office of Foreign Labor Certification revised its Form ETA-9141, Application for Prevailing Wage Determination, for use beginning May 3, 2021.

22. CBP Reminds Carriers of LPR Boarding Policy – U.S. Customs and Border Protection issued guidance on March 5, 2021, for its Carrier Liaison Program on the current policy for boarding of lawful permanent residents (LPRs).

23. Border Czar to Leave Biden Administration; Vice President to Lead Efforts with Mexico and Northern Triangle Countries – Roberta Jacobson, whom President Biden appointed as Special Assistant to the President and Coordinator for the Southwest Border, plans to leave the position at the end of April, as the number of migrants attempting to cross the border is surging.

24. ABIL Global: Canada – This article discusses the demise of the Owner Operator labour market impact assessment, and what options remain for entrepreneurs hoping to come to Canada.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – May 2021

1. President Biden Suspends Entry of Noncitizens/Non-LPRs Traveling From India; U.S. Mission in India Announces Limits on Visa Services

President Biden has issued a proclamation suspending the entry of non-U.S. citizens who were physically present within India during the 14-day period preceding their entry or attempted entry into the United States, with some exceptions. The proclamation takes effect May 4, 2021, and will remain in effect until terminated by the President.

The proclamation states that India “is experiencing widespread, ongoing person-to-person transmission of the virus” that causes COVID-19 and its variants. The proclamation cites the Centers for Disease Control and Prevention, which has concluded that proactive measures are required to protect U.S. “public health from travelers entering the United States from that jurisdiction.”

The ban on entry does not apply to U.S. citizens and lawful permanent residents (LPRs), noncitizen nationals of the United States, noncitizen spouses of U.S. citizens or LPRs, noncitizen members of the U.S. armed forces, noncitizens whose entry is in the national interest; noncitizens traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the coronavirus, and several other categories.

The White House has alerted U.S. airlines and Congress. Also, the U.S. embassy and consulates in India announced significant temporary limitations on visa and other services.

Details:

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2. State Dept. Announces Global National Interest Exceptions to COVID-19 Travel Restrictions

On April 27, 2021, the Department of State (DOS) announced national interest exceptions to all regional travel restrictions currently in effect as a result of the COVID-19 pandemic.

DOS said that students seeking to start studies in the fall, certain academics, journalists, and individuals who provide critical infrastructure support in countries affected by a geographic COVID-19 restriction may now qualify for a national interest exception. This includes qualified applicants who have been in Brazil, China, Iran, or South Africa.

DOS also said that the pandemic “continues to limit the number of visas our embassies and consulates abroad are able to process,” and that visa applicants should check the website of their nearest U.S. embassy or consulate for the latest information about visa appointment availability.

Details:

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3. Supreme Court Rules in Favor of Relief for Long-Term Noncitizen U.S. Resident Removed From United States

The U.S. Supreme Court ruled on April 29, 2021, that “[n]onpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years.”

The Court noted that the period of continuous presence is deemed to end when the individual is served a notice to appear in a removal proceeding. This principle is called the “stop-time rule.” In this case, the government ordered the removal of petitioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document providing Mr. Niz-Chavez with the time and place of his hearing. The government contended that because the two documents collectively specified all statutorily required information for a notice to appear, Mr. Niz-Chavez’s continuous presence in the United States stopped when he was served with the second document. The Court disagreed, holding that a notice to appear sufficient to trigger the stop-time rule “is a single document containing all the information about an individual’s removal hearing.”

Details:

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4. USCIS Reverses Trump Policy, Instructs Adjudicators to Resume Granting Deference to Prior Determinations in Petition Validity Extension Requests

Effective immediately, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance on April 27, 2021, to generally restore its 2004 instructions directing officers to defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition. USCIS had rescinded the 2004 guidance in 2017.

The updated policy clarifies that USCIS will once again give deference unless there was a material error, material change in circumstances or eligibility, or new material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility. The updated policy also affirms that USCIS “considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies,” and that “officers make determinations on the evidence of record in the petition or application under adjudication.”

Details:

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5. State Dept. Announces Tiered Immigrant Visa Prioritization

On April 30, 2021, the Department of State (DOS) announced a tiered prioritization approach to “triage” immigrant visa applications in light of reduced operating capacity as a result of the COVID-19 pandemic.

The main categories of immigrant visas in priority order are:

  • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)
  • Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
  • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
  • Tier Four: All other immigrant visas, including employment preference and diversity visas

Details:

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6. SSA Ends “No-Match” Letters

According to reports, the Social Security Administration (SSA) has ended the practice of sending employers “no-match” letters, called Employer Correction Request Notices. SSA said it will instead work to make it “better, easier and more convenient” for employers to report and correct wages electronically. The letters, which inform employers when W-2 information doesn’t match SSA’s records, were discontinued in 2012 but resurrected in March 2019.

Advocates had asked the agency to eliminate the letters, which they said caused problems such as workers losing their jobs due to mistakes in the database.

Details:

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7. DHS to Make Additional 22,000 Temporary Non-Agricultural Worker Visas Available

In light of increased labor demands, the Department of Homeland Security (DHS) announced a supplemental increase of 22,000 visas this fiscal year for the H-2B Temporary Non-Agricultural Worker program. DHS said the additional visas will be made available in the “coming months” via a temporary final rule. Six thousand of these visas will be reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala, DHS said.

The additional visas will only be made available to employers that attest that, if they do not receive workers under the cap increase, they are likely to suffer irreparable harm, DHS said. Additionally, the temporary final rule “will allow employers to immediately hire H-2B workers who are already present in the United States without waiting for approval of the new petition. This portability provision is a critical safeguard that protects both U.S. and H-2B workers, while also providing flexibilities to employers during a time when travel remains challenging,” the agency said. The supplemental increase “is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years.”

Details:

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8. President Biden Orders CBP, ICE to Change Terminology

According to reports, under orders of the Biden administration, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement issued memoranda to their employees to stop using certain terms and replace them with others.

Examples include:

  • “alien”—use “noncitizen” or “migrant”
  • “alienage—use “noncitizenship”
  • “illegal alien”—use “undocumented noncitizen,” “undocumented individual,” or “migrant”
  • “unaccompanied alien children”—use “noncitizen unaccompanied children”
  • “assimilation”— use “integration” or “civic integration”
  • “immigrant assimilation”— use “immigrant integration”

Details:

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9. DHS Provides Relief for Venezuelan and Syrian F-1 Students

The Department of Homeland Security (DHS) has suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Venezuela or Syria.

DHS said it took this action for Venezuelan students who are experiencing severe economic hardship as a direct result of the current humanitarian crisis in Venezuela, and for Syrian students who are experiencing severe economic hardship as a direct result of the civil unrest in Syria since March 2011

DHS said that affected Venezuelan and Syrian lawful F-1 nonimmigrant students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain F-1 status.

DHS will deem an F-1 nonimmigrant student who receives employment authorization by means of the notice to be engaged in a “full course of study” for the duration of the employment authorization if the student satisfies the minimum course load requirement as described in the notices, which will remain effective for Venezuelan students until September 9, 2022, and for Syrian students until September 30, 2022.

Details:

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10. DHS Rescinds Civil Penalties for Failure to Depart

The Department of Homeland Security (DHS) announced on April 23, 2021, that U.S. Immigration and Customs Enforcement (ICE) has rescinded two orders related to the collection of civil financial penalties for noncitizens who fail to depart the United States.

A DHS statement said the fines “were not effective and had not meaningfully advanced the interests of the agency.” ICE intends to work with the Department of the Treasury to cancel the existing debts of those who had been fined, DHS said. “There is no indication that these penalties promoted compliance with noncitizens’ departure obligations. We can enforce our immigration laws without resorting to ineffective and unnecessary punitive measures,” said DHS Secretary Alejandro Mayorkas.

The DHS statement said that this rescission “marks ICE’s latest move toward focusing its limited resources on those posing the greatest risk to national security and public safety.”

Details:

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11. State Dept. Issues Final Rule Changing Certifying Authority for Graduate Medical Education

Effective May 19, 2021, the Department of State is changing the certification authority for noncitizen physicians from the American Board of Medical Specialties (ABMS) to the Accreditation Council for Graduate Medical Education (ACGME).

The Department explained that ABMS no longer produces the publication, Marquis Who’s Who, referenced in 22 CFR Part 62. Furthermore, ABMS has confirmed that it is also no longer the appropriate organization to comment on programs of graduate medical education. The Department said it has confirmed that the Accreditation Council for Graduate Medical Education (ACGME) has responsibility to accredit and recognize institutions offering programs of graduate medical education, and the agency therefore is replacing the reference to the ABMS with the ACGME in 22 CFR § 62.27.

Details:

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12. State Dept. Updates Travel Advisories Due to Ongoing Pandemic

The Department of State expanded its travel advisories to warn U.S. citizens not to travel to many areas due to ongoing “unprecedented risks” posed by the COVID-19 pandemic. The Department is warning travelers against going to “approximately 80% of countries worldwide.”

Details:

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13. DHS Corrects Deadline for Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies

The Department of Homeland Security (DHS) issued a correction to its notice seeking comments from the public on how U.S. Citizenship and Immigration Services (USCIS) can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits. The notice had said comments were due April 19, 2021, but the correction says comments are due May 19, 2021.

DHS said the effort “will help DHS identify process improvements for USCIS, with benefits for state, local, and tribal governments, for businesses (including small businesses and startups), for educational institutions of all kinds, for nonprofits, and for individuals.”

The correction was scheduled to be published in the Federal Register on April 26, 2021. The original notice was published on April 19, 2021.

Details:

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14. President Biden Will Raise Refugee Cap Following Backlash

White House Press Secretary Jen Psaki said on April 16, 2021, that President Joe Biden plans to raise the cap on refugees for fiscal year 2021 by May 15, 2021. The announcement followed a backlash after plans were announced to keep the number of refugee admissions at 15,000, which contradicted earlier statements that the cap would be raised. According to reports, a senior administration official said the cap was lower than anticipated due to a combination of insufficient infrastructure to process refugees and issues related to the COVID-19 pandemic.

Previously, the Biden administration had said the FY 2021 cap would be 62,500 and the FY 2022 cap would be 125,000. It remains unclear how much the administration will raise the FY 2021 cap. The allocations announced earlier on April 16 included Africa (7,000), East Asia (1,000), Europe and Central Asia (1,500), Latin America and the Caribbean (3,000), Near East and South Asia (1,500), and an unallocated reserve of 1,000 to be used “where the need for additional admissions arises and to transfer unused allocations from a particular category to one or more other categories” if needed.

A White House statement also said that persons in the following countries “may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence”: Cuba; Eurasia and the Baltics; Iraq; Honduras, Guatemala, and El Salvador; and in special circumstances, “persons identified by a United States Embassy in any location or initially referred to the Federal Government by a designated non-governmental organization.”

Ms. Psaki indicated that flights from key regions where refugees are located could begin “within days.”

Details:

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15. President Biden Picks Nominees for USCIS, CBP

President Joe Biden has chosen Ur Jaddou to lead U.S. Citizenship and Immigration Services (USCIS) and Chris Magnus to lead U.S. Customs and Border Protection (CBP), according to reports. Below are biographical highlights.

Ur Jaddou, USCIS nominee. A White House statement notes that Ms. Jaddou has two decades of experience in immigration law, policy, and administration. Most recently, she was Director of DHS Watch, a project of America’s Voice. She is an adjunct professor of law at American University’s Washington College of Law, and counsel at Potomac Law Group, PLLC. From June 2014 to January 2017, she was Chief Counsel for USCIS. She also served as Chief Counsel to the House of Representatives’ Subcommittee on Immigration, and as Deputy Assistant Secretary for Regional, Global and Functional Affairs in the Bureau of Legislative Affairs at the Department of State. Ms. Jaddou is a daughter of immigrants from Mexico (mother) and Iraq (father), and was born in California. She earned bachelor’s and master’s degrees from Stanford University and a law degree from UCLA School of Law.

 

 

Chris Magnus, CBP nominee. The White House statement notes that Mr. Magnus is Police Chief in Tucson, Arizona. He has a long career in public safety, including with the Lansing, Michigan, police department and serving as Police Chief in Fargo, North Dakota; Richmond, California; and Tucson, Arizona. In those roles, Mr. Magnus focused on relationship-building between the police and community, implementing evidence-based best practices, promoting reform, and police accountability. Because of Tucson’s proximity to the U.S.-Mexico border, Mr. Magnus has “extensive experience in addressing immigration issues,” the White House said. He earned bachelor’s and master’s degrees from Michigan State University and attended the Senior Executives in State and Local Government program at Harvard University’s Kennedy School of Government.

Details:

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16. F-1 Students Seeking OPT Can Now File Form I-765 Online

U.S. Citizenship and Immigration Services (USCIS) announced on April 12, 2021, that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:

  • (c)(3)(A), Pre-Completion OPT
  • (c)(3)(B), Post-Completion OPT
  • (c)(3)(C), 24-Month Extension of OPT for science, technology, engineering, and mathematics (STEM) students

USCIS emphasized that the option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT, noting that “[i]f an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.”

To submit a form online, an individual must first create a USCIS online account at myaccount.uscis.gov. The free account allows people to submit forms, pay fees, track the status of their case, communicate with USCIS through a secure inbox, and respond to requests for additional evidence. USCIS continues to accept the latest paper versions of forms by mail.

Details:

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17. State Dept. Releases FAQ on Immigrant Visa Backlog and Consular Processing

On April 13, 2021, the Department of State released frequently asked questions (FAQ) on the immigrant visa backlog and consular processing. The FAQ notes that the immigrant visa interview backlog has developed “because of limitations in staffing and other COVID-related operational constraints preventing us from processing the same volume of applicants as pre-pandemic.” In addition, the FAQ cites previous presidential proclamations that “restricted visa processing for many immigrants for nearly a year.” The Department said it would take time to process the cases affected by these travel restrictions.

The Department said it is committed to decreasing the backlog by “prioritizing certain visas, creating efficiencies in the visa process, and utilizing all available resources until our task is accomplished.” Applicants should check the website of their nearest U.S. embassy or consulate for updates on currently available visa services, the FAQ states. Virtual interviews are not available because current regulations “require all immigrant visa applicants to appear in person before a consular officer,” the FAQ states.

Details:

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18. DHS Seeks Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies

The Department of Homeland Security (DHS) seeks comments from the public on how U.S. Citizenship and Immigration Services (USCIS) can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits.

This effort “will help DHS identify process improvements for USCIS, with benefits for state, local, and tribal governments, for businesses (including small businesses and startups), for educational institutions of all kinds, for nonprofits, and for individuals,” the request states.

The request is scheduled to be published in the Federal Register on April 19, 2021.

Details:

  • Advance notice of DHS request,

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19. State Dept. Updates Visa Services Guidance, Policy on National Interest Exceptions for Regional COVID Proclamations

The Department of State recently released several updates on visa services and national interest exception policy for regional COVID proclamations:

Visa Services Guidance

Referring to continued restrictions due to the COVID-19 pandemic worldwide, the Department announced on April 6, 2021, that U.S. embassies and consulates that process nonimmigrant visa applications “are prioritizing travelers with urgent needs, foreign diplomats, mission-critical categories of travelers (such as those coming to assist with the U.S. response to the COVID-19 pandemic, and workers who are essential to the American food supply), followed by students, exchange visitors, and some temporary employment visas.”

With respect to visa services, for consular sections that have the capacity, “the processing of immigrant and [fiancé(e)] visas, particularly for immediate relatives and other family-sponsored applicants, is our highest priority. U.S. Embassies and Consulates are also prioritizing the processing of immigrant visa cases previously refused under the rescinded Presidential Proclamations 9645 and 9983,” the Department said.

The Department noted that as a result of the pandemic, appointment capacity continues to be reduced, which “has created a significant backlog of both immigrant and nonimmigrant visa applicants awaiting a visa interview.” The Department said it is working to reduce the backlog.

National Interest Exceptions

The Department announced on April 8, 2021, that the travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of approving exceptions under the “geographic” COVID Presidential Proclamations (9984, 9992, and 10143).

The Department noted that these proclamations “restrict the entry of individuals physically present, within the 14-day period prior to their attempted entry into the United States, in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Federative Republic of Brazil, or Republic of South Africa.”

Details:

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20. Attorneys, AILA Sue State Dept. for Unlawfully Refusing to Issue Visas Due to Certain Travel Bans

Attorneys Jeff Joseph of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, along with the American Immigration Lawyers Association (AILA), filed a complaint on April 7, 2021, on behalf of scores of plaintiffs against the Department of State and Secretary Antony Blinken, alleging that the agency has unlawfully relied on certain travel bans in refusing to issue visas.

Specifically, the travel bans relate to suspensions of entry that apply to individuals who were physically present in Iran, China, Brazil, South Africa, the Republic of Ireland, the United Kingdom, and the Schengen area of Europe during the 14 days before seeking entry. The complaint states that these regional bans based on presence allow for entry after the individual has remained outside a designated country for 14 days, but that the defendants have refused to issue visas that would allow the plaintiffs to quarantine in a third country for 14 days before seeking entry.

Details:

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21. OFLC Announces New Application for Prevailing Wage Determination

The Department of Labor’s Office of Foreign Labor Certification (OFLC) revised its Form ETA-9141, Application for Prevailing Wage Determination, for use beginning May 3, 2021.

As of 8 a.m. on May 3, 2021, OFLC will only accept prevailing wage applications submitted using the new form. OFLC will reject, without further review, prevailing wage paper applications submitted using the current version of the form. A stakeholder webinar will be held on April 27, 2021, at 2 p.m. ET (2 hours).

Details:

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22. CBP Reminds Carriers of LPR Boarding Policy

U.S. Customs and Border Protection issued guidance on March 5, 2021, for its Carrier Liaison Program on the current policy for boarding of lawful permanent residents (LPRs):

Unexpired Valid Permanent Resident Card

  • Passengers with a valid, unexpired Permanent Resident Card (PRC or “green card”) may be boarded without any additional documentation.

Re-Entry Permit (I-327): Valid and Unexpired

  • Passengers with valid, unexpired re-entry permit are permitted to board without additional documentation.
  • The document must be the original re-entry permit. Copies are not accepted.

Expired Permanent Resident Cards: Ten-year validity

  • Lawful permanent residents (LPRs) with an expired I-551 may be boarded without penalty, provided the card was issued with a 10-year expiration date.

Expired Permanent Resident Cards: Containing Extension Sticker/Form I-797

  • Starting in January 2021, the sticker that is currently issued to LPRs to extend the validity of their PRC (placed on the back of the card) has been discontinued.
  • The revised I-797 receipt notice, together with an applicant’s PRC, will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the front of the green card.
  • PRCs that contain the extension sticker will remain valid until the expiration date.
  • The document must be the original I-797 permit. Copies are not accepted.

Expired Conditional Resident: Two-year validity

  • A Conditional Resident with an expired PRC (with a two-year expiration date) may be boarded if also in possession of a Notice of Action (Form I-797).
  • The Notice of Action extends the validity of the card for a specified length of time, generally 18 months.
  • Do not board the traveler if they are not in possession of Form I-797.

SB-1 Visas: Valid and Unexpired

  • Travelers in possession of a valid, unexpired SB-1 visa in their passport may be boarded without additional documentation.

The guidance notes that “[a]irlines should not be determining admissibility of a [traveler] outside the parameters of the document requirements.

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23. Border Czar to Leave Biden Administration; Vice President to Lead Efforts with Mexico and Northern Triangle Countries

Roberta Jacobson, whom President Biden appointed as Special Assistant to the President and Coordinator for the Southwest Border, plans to leave the position at the end of April, as the number of migrants attempting to cross the border is surging. She had committed to serve for the first 100 days of the Biden administration, according to an April 9, 2021, statement from Jake Sullivan, National Security Advisor.

Ms. Jacobson, formerly U.S. Ambassador to Mexico, “launched our renewed efforts with the Northern Triangle nations of El Salvador, Guatemala, and Honduras,” and “underscored this Administration’s commitment to reenergizing the U.S. immigration system.” Ms. Jacobson had said the Biden administration “plans to approach U.S. companies about increasing investment in Mexico and Central America to try to reduce migration.”

President Biden appointed Vice President Kamala Harris to lead “efforts with Mexico and the Northern Triangle,” Mr. Sullivan said. He added that Vice President Harris will oversee “a whole-of-government approach supported by outstanding public servants across the interagency including Secretary of Homeland Security Alejandro Mayorkas and Secretary of Health and Human Services Xavier Becerra, who were tasked by the President at the beginning of the administration to rebuild our immigration system.” Vice President Harris is expected to use diplomacy in her efforts rather than being responsible for the border, according to reports.

Details:

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24. ABIL Global: Canada

This article discusses the demise of the Owner Operator labour market impact assessment, and what options remain for entrepreneurs hoping to come to Canada.

In Canada, the starting point to obtain a work permit as a foreign national is a labour market impact assessment (LMIA). This requires a Canadian company to demonstrate that they advertised the position and that Canadian citizens and permanent residents were given a reasonable opportunity to apply for the position. Until recently, one of the most popular exemptions from advertising to support an LMIA application was the Owner Operator category. Where a foreign national owned more than 50 percent of a Canadian company, no advertising was required, and the Canadian company merely had to establish that the impact of hiring the foreign national would have a neutral or positive impact on the Canadian labor market and that the job offer was genuine.

The Entrepreneur permanent residence category was eliminated approximately two decades ago. Since then, many of the provinces have designed entrepreneur programs, but these provincial programs typically require a minimum investment and creation of jobs in Canada and often take months to be approved. Accordingly, in the absence of a true entrepreneur program, the Owner Operator LMIA provided a path for many self-employed business entrepreneurs to initially come to Canada to work, gain Canadian experience working for a Canadian company, and then ultimately apply for permanent residence under the Express Entry path.

What options remain for entrepreneurs hoping to come to Canada and start a new business?

Recently, Immigration, Refugees and Citizenship Canada (IRCC) launched the Start-Up Visa Program. This program requires foreign nationals to secure financial backing from a designated angel fund or venture capital funds or the support of a business incubator. The Start-Up Visa Program has been underutilized, likely because entrepreneurs are not interested in sharing their business ideas or ownership in their future business.

There is also a C-11 work permit for Entrepreneurs /Self-Employed candidates, but it does not include a direct path to permanent residence. Since most successful candidates for permanent residence require “Canadian work experience,” and self-employed work is not considered “Canadian work experience” (Immigration and Refugee Protection Act), it is unlikely that C-11 work permit holders will qualify for permanent residence.

With the elimination of the Owner Operator LMIA and limitations with the Start-Up Visa, C-11 work permit, and provincial programs for entrepreneurs, Canada is missing out on the potential to attract entrepreneurs. Given that it is well-established that new immigrants are often risk-takers and therefore make good entrepreneurs, this could have a negative long-term impact on Canada’s immigration program and economy. This is particularly relevant in light of estimates of approximately a trillion dollars’ worth of small and medium-sized businesses in Canada that are owned by baby boomers who are set to retire within the next 10 years. So far there has been no indication IRCC plans to develop more policies and programs to create paths for entrepreneurs.

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New Publications and Items of Interest

COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

  • CBP:

Department of Labor:

  • Office of Foreign Labor Certification:

State Department: https://www.state.gov/coronavirus/

Justice Department

Agency Twitter Accounts

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) were quoted by Forbes in “The State Department Can Act to Reduce Visa Delays.” She said, “To get an expedited interview, you have to first make a regular appointment, and then you need to explain what are the factors, such as dire business need or family issues. So far, I am seeing that mere inconvenience or business interruption without demonstrable and serious financial consequences won’t do it.” The article says that Mr. Stock shared a thread showing that a client’s interview in Paris for an O-1 visa was bumped four times. Two other appointments scheduled for July, one for an L-1B visa (intracompany transferee), were canceled. “The first new interview appointments in Paris appear to be in February 2022,” the article notes. https://www.forbes.com/sites/stuartanderson/2021/04/19/the-state-department-can-act-to-reduce-visa-delays/?sh=1fc601c95c26

Rami Fakhoury (bio: https://www.abil.com/lawyers/lawyers-fakhoury.cfm?c=US) and Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) will speak at a webinar, “Global Talent Opportunities: A Legal and Policy Forecast and Update on Hiring Global Talent,” to be held Monday, April 19, 2021, from 2:30 to 4 p.m. ET. https://www.eventbrite.com/e/webinar-global-talent-opportunities-registration-146927575333

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted by Bloomberg Law in ” ‘Legal Dreamers’ See Renewed Chance for Relief in Legislation.” Regarding the children of the H-1B specialty visa applicant population awaiting green cards who age out, he said, “If they start all over again they’ll have to wait another 50 years. It’s a hopeless situation for H-4 children of parents born in India.” https://news.bloomberglaw.com/daily-labor-report/legal-dreamers-see-renewed-chance-for-relief-in-legislation

Mr. Mehta co-authored several new blog post: “What Happens to a Lawful Permanent Resident Who Has Been Stranded for Over One Year Abroad and the Green Card Validity Has Expired?,” http://blog.cyrusmehta.com/2021/04/what-happens-to-a-lawful-permanent-resident-who-has-been-stranded-for-over-one-year-abroad-and-the-green-card-validity-has-expired.html, and “Coping With Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application.” http://blog.cyrusmehta.com/2021/04/coping-with-delays-facing-h-4-and-l-2-spouse-when-they-have-a-pending-adjustment-application-part-2.html

Mr. Mehta was quoted by the Times of India in “Green Card Holders Stuck in India Need to Prove U.S. Ties.” He said, “With respect to green card holders who have been outside for more than a year, they should first try to apply for the returning resident or SB-1 visa. On the ground level, obtaining an appointment at the U.S. Consulate during the pandemic can be challenging. Even pre-Covid, the U.S. consulates have not been very generous in issuing SB-1 visas.” He noted that “if the green card holder cannot obtain the SB-1 visa, and the green card date has not expired, they can still try to board a flight and assert that they have not abandoned their green card at the U.S. port of entry.” Mr. Mehta also said that U.S. courts “have provided a test regarding green card abandonment, which is quite generous. Even if the green card holder has been outside the U.S. for much longer than a year, the key question is whether they consistently harbored an intent to return to the U.S. and continued to maintain ties with the country. Under the law, the government has a very heavy burden to prove that the green card holder has abandoned that status. During Covid, a green card holder who has been away for more than a year still has a good chance of being allowed entry if this person otherwise kept ties with the U.S.”

Mr. Paparelli has authored several new blog posts: “Oops No More, USCIS,” https://www.nationofimmigrators.com/uscis/oops-no-more-uscis/, “What’s Up With USCIS?—An Oops, Yet Still A Promising Start,” https://www.nationofimmigrators.com/uscis/whats-up-with-uscis-an-oops-yet-still-a-promising-start/, and “Coping With Delays Facing H-4 and L-2 Spouses,” http://blog.cyrusmehta.com/2021/04/coping-with-delays-facing-h-4-and-l-2-spouses.html

Bernard Wolfsdorf will present “Australian Outback: Scorcher Topics in the World of EB-5” at the American Immigration Lawyers Association’s Asia-Pacific Chapter EB-5 Annual Conference on May 11, 2021. https://wolfsdorf.com/bernard-wolfsdorf-to-present-at-the-aila-asia-pacific-chapter-eb-5-annual-conference/

Wolfsdorf Rosenthal LLP has published several new blog posts: “Global Mobility Issues: Tips for Avoiding Delays at Ports of Entry,” “Immigration Update,” “Top Immigration Pain Points for Employees,” “I-829 Processing Times Have Run Amok,” “Updated Travel Advisory,” ” ‘Dreamers’ and Farmworker Bills Pass House; Fate in Senate Uncertain,” “Could EB-5 Green Cards Be Processed in 2 Years Without Expedites? Will I-526 EB-5 Petition Processing Dramatically Improve in Near Future?,” “Top Workforce Trends in the Global Life Sciences Industry in 2021,” and “Immigration Update.” https://wolfsdorf.com/news/

WR Immigration Partners Leslie Ditrani and Philip Curtis, and Of Counsel Lorie Lunn, were listed in Best Lawyers in New England. https://wolfsdorf.com/wr-immigration-in-best-lawyers-in-new-england/

WR Immigration will present at the WERC Spring Virtual Conference on a panel, “Reinventing Global Mobility Through Tech: Solutions for a Post-Pandemic World,” on May 24, 2021. https://wolfsdorf.com/wr-immigration-selected-to-present-at-2021-werc-spring-virtual-conference/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Reuters in “U.S. Supreme Court Hands Victory to Immigrants Facing Deportation.” The article appeared in many news outlets. He said the ruling gives immigrants “a second chance to try to prove that they qualify for cancellation of removal and other forms of relief.” https://www.yahoo.com/news/u-supreme-court-hands-victory-154737133.html

Mr. Yale-Loehr was quoted by Univision in “Biden Changes His Tone on Immigration Issues, But the Underlying Crisis is the Same.” He said, “President Biden has done a lot on immigration in his first 100 days in office. Among other things, he sent a major immigration reform bill to Congress, reinstated the DACA program, reprioritized deportation policy to focus on serious offenders, ended the previous administration’s travel bans, and allowed families and unaccompanied children to enter the United States while they await their asylum hearings. Doing all of this in 100 days is extraordinary, especially given everything else he is dealing with, including stopping the Covid-19 pandemic, economic woes, climate change, and efforts to improve our aging infrastructure.” However, he noted that “much remains to be done. In particular, the surge in people trying to enter the United States is giving Republicans an easy talking point to say that President Biden is ‘soft’ on immigration. That may make it more difficult to persuade Congress to enact comprehensive immigration reform this year.” https://www.univision.com/noticias/inmigracion/primeros-100-dias-biden-y-sus-promesas-para-la-crisis-migratoria (Spanish, with English translation offered)

Mr. Yale-Loehr was quoted by Correio Braziliense in “Experts Analyze 100 Days of Biden and President’s Speech to Congress.” He said, “President Biden has done a lot in the first 100 days of his term. The government has helped many Americans get vaccinated against Covid-19. It also persuaded Congress to pass legislation to help people cope with the pandemic.” He also noted Biden’s suspension of the Trump-era ban on U.S. entry of people from Muslim countries, and said, “Biden also stated that unaccompanied children at the border should not be detained while seeking asylum. However, he failed to increase the number of refugees from other countries. It is worth remembering that Trump made more than 400 changes in immigration policy. It will take some time to undo these changes.” (Portuguese, with English translation offered)

Mr. Yale-Loehr authored an op-ed published in The Hill: “Biden Brings Hope for International Students.” The op-ed notes a positive change in attitude in the current administration toward international students but recommends certain actions to attract international students, provide predictability, and allow universities and employers to retain global talent. https://thehill.com/opinion/immigration/550110-biden-brings-hope-for-international-students

Mr. Yale-Loehr was quoted by Univision in “Are parents criminally responsible for sending their children alone to the southern border of the United States?” The article asks if a parent can be sued who pushes a child to leave his or her country. “The question has to do with tort law, not U.S. immigration law,” Mr. Yale-Loehr noted. “The question is whether parents can be sued for negligence by allowing their children to travel alone from their country of origin to the United States.” In practice, “these trials are very rare, for several reasons. First, the child (or someone who sues on behalf of the child) would have to sue. And it is unlikely that children are aware of the United States civil liability law. And they are probably not willing to sue their parents. Also, even if they wanted to sue, they could not pay a lawyer to represent them.” He also said that “even if a child wins a tort lawsuit, many parents would not have money to pay for the damages.” A second question was whether it is legal to allow a child to travel alone and cross the border alone. “Nothing in U.S. immigration law prevents this. Immigration law says that anyone who has a well-founded fear of persecution can apply for asylum. There is no minimum age requirement to apply for asylum at the border,” Mr. Yale-Loehr explained. https://www.univision.com/noticias/inmigracion/padres-principales-responsables-enviar-solos-hijos-frontera-estados-unidos [Spanish]

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

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