Posts

ABIL Immigration Insider • March 6, 2022

/in /by

In this issue:

1. DHS Designates Ukraine for Temporary Protected Status; Immigration Help in ‘Special Situations’ Available on Case-by-Case Basis – The Department of Homeland Security announced the designation of Ukraine for Temporary Protected Status for 18 months. Eligible individuals must have continuously resided in the United States since March 1, 2022. Also, USCIS issued an alert about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine.

2. State Dept. Announces Processing Posts for Visa Applicants From Ukraine – The U.S. Mission to Ukraine is not currently offering visa services. Ukrainian immigrant visas other than adoption cases will be processed at Consulate General Frankfurt. The announcement includes additional details.

3. State Dept. Releases Info and Tips for U.S. Citizens in Ukraine – The notice includes an online form to enable DOS to communicate with U.S. citizens, telephone numbers for immediate assistance, and advice and tips on how to prepare when crossing a border during a crisis, and on entering neighboring countries from Ukraine.

4. DHS Designates Sudan, Extends/Redesignates South Sudan for Temporary Protected Status – The Department of Homeland Security designated Sudan and extended and redesignated South Sudan for Temporary Protected Status for 18 months.

5. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From South Sudan – The Department of Homeland Security is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Republic of South Sudan, regardless of country of birth (or individuals having no nationality who last habitually resided in South Sudan), and who are experiencing severe economic hardship as a direct result of the humanitarian crisis in South Sudan. The notice is effective March 3, 2022, through November 3, 2023.

6. FY 2022 H-1B Cap Reached – USCIS received a sufficient number of petitions needed to reach the 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for FY 2022.

7. H-2B Cap Reached for Second Half of FY 2022 – February 25, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2022, and before October 1, 2022.

8. Credit Card Payment Pilot Program Expanded to All Service Centers – Credit card payments are now being accepted at USCIS service centers using Form G-1450, Authorization for Credit Card Transactions, for all forms except Form I-129, Petition for a Nonimmigrant Worker, for H-1B and H-2A petitions.

9. USCIS Clarifies I-9 Guidance for Native American Tribal Documents, Others – USCIS recently clarified Form I 9 guidance related to Native American Tribal documents, and T and U nonimmigrants, in its M 274, Handbook for Employers.

10. Biden Administration Considers TPS, Other Measures for Ukrainians; Advocacy Organizations Weigh In; Consular Services Suspended in Kyiv – The Biden administration is considering implementing protections for Ukrainians in the United States, as Russia invades Ukraine in a rapidly developing situation expected to result in many refugees and displaced persons. Consular services are suspended in Kyiv; help is available at the border.

11. USCIS No Longer Accepts Single Combined Payments on Certain Forms Filed With H-1B or H-1B1 Petitions – For all H-1B and H-1B1 petitions received on or after April 1, 2022, USCIS will no longer accept a single, combined fee payment for certain forms.

12. USCIS Releases Statistics on H-1B Cap Registrations, Cracks Down on Multiples – Registrations were submitted by more than 37,000 prospective petitioners. Roughly 48 percent of all registrations requested consideration under the advanced degree exemption.

13. USCIS Releases Notice in Response to Class Action for Certain Cuban Nationals Denied Adjustment – Certain Cuban nationals who were denied Cuban adjustment for lack of a parole document are eligible to file I-290B (Notice of Appeal or Motion) for up to one year, or a new I-485 (Application to Register Permanent Residence or Adjust Status).

14. USCIS Urges Eligible Applicants to Switch Employment-Based Categories – USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status applications to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories.

15. Visa Bulletin for March Includes Updates on Employment-Based Expirations and Retrogressions – The Department of State’s Visa Bulletin for March 2022 includes several updates on expiring or retrogressing employment-based visa categories.

16. DHS To Propose ‘Fair and Humane’ Public Charge Rule – According to DHS, the proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States.

17. Two California Executives Charged With Fraud in Obtaining Dozens of H-1B Specialty Occupation Visas – The indictment alleges that the two executives submitted approximately 85 fraudulent H-1B visa applications and laundered $1 million in fraud proceeds.

18. United States Once Again ‘Welcomes’ Immigrants: USCIS Announces New Mission Statement – The new mission statement, with its emphasis on welcoming and respect, reflects USCIS’s restoring of the agency’s focus on services.

19. USCIS Updates Guidance, Changes Maximum Validity Period for EADs for Certain Applicants – USCIS said that increasing the maximum validity period for several categories “will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.”

20. USCIS Clarifies Guidance on Temporary Need Requirement for H-2B Workers in Guam and Northern Marianas – USCIS clarified its guidance on how petitioners may demonstrate that they qualify for an exemption from the temporary need requirement for a nonimmigrant visa petition for a temporary nonagricultural H-2B worker on Guam and in the Commonwealth of the Northern Mariana Islands that falls under the Fiscal Year 2021 National Defense Authorization Act.

21. New Lockbox Facility Opens in Illinois – USCIS is beginning to transition incoming work for certain applicants to a new lockbox facility in Elgin, Illinois.

22. DHS, VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Families – The Department of Homeland Security, in partnership with the Departments of Veterans Affairs and Defense, launched new online resources to support U.S. noncitizen service members, veterans, and their families.

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

Download:

ABIL Immigration Insider – March 2022

1. DHS Designates Ukraine for Temporary Protected Status; Immigration Help in ‘Special Situations’ Available on Case-by-Case Basis

On March 3, 2022, the Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. Also, U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. Highlights are below.

Temporary Protected Status for Ukraine

Individuals eligible for TPS under the Ukraine designation must have continuously resided in the United States since March 1, 2022. According to reports, up to an estimated 75,000 Ukrainians in the United States could be eligible for TPS.

Ukraine’s 18-month designation will take effect on the publication date of a forthcoming Federal Register notice, which will provide instructions for applying for TPS and a work permit. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Case-by-Case Help in Special Situations

U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. USCIS provided a list of measures that may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. USCIS said, “If you fail to apply for the extension or change before expiration of your authorized period of admission, we may excuse that if the delay was due to extraordinary circumstances beyond your control”;
  • Reparole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of petitions or applications, including employment authorization applications, when appropriate;
  • Consideration of fee waiver requests due to an inability to pay;
  • Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Flexibility if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Document, or Form I-94, Arrival/Departure Record; and
  • Rescheduling a biometric services appointment.

At least an estimated 1.3 million Ukrainians have fled their country since Russia invaded Ukraine in late February, with more following. More than half are in Poland, with others in Hungary, Moldova, Romania, and Slovakia. The rapidly escalating situation on the ground in Ukraine remains fluid, chaotic, and extremely dangerous.

It is unclear whether the United States will be taking in new Ukrainian refugees or offering asylum in addition to providing TPS for those already in the country.

Details:

Back to Top

2. State Dept. Announces Processing Posts for Visa Applicants From Ukraine

The Department of State (DOS) announced on March 1, 2022, that the U.S. Mission to Ukraine is not currently offering visa services. Ukrainian immigrant visas (IVs) other than adoption cases will be processed at Consulate General Frankfurt. (The U.S. Embassy in Warsaw will process Ukrainian adoption cases as well as A and G diplomatic and official visas.) The announcement includes the following details:

  • Contact [email protected] with questions about Ukrainian immigrant and fianc(é)e visa cases.
  • Nonimmigrant visa (NIV) applications may be processed wherever a Ukrainian applicant is physically located and can schedule an appointment. Interested applicants should follow instructions on the relevant U.S. Embassy website to apply for a nonimmigrant visa. A list of U.S. Embassy websites is at https://www.usembassy.gov.
  • Ukrainian applicants do not require a Schengen visa to enter Germany or Poland. However, immigrant visa (IV) and diversity visa (DV) applicants who already have been scheduled for appointments in Frankfurt or Warsaw may request that their cases be transferred to another post. To do so, the applicant should contact the alternate post to request a case transfer, and the transfer is contingent upon the alternate post’s acceptance of the case.
  • IV and DV applicants who have not yet been scheduled will be automatically reassigned to Frankfurt and will be notified once their appointment is on the calendar. Unscheduled Ukrainian DV applicants who need to interview outside of Germany can send requests to [email protected].

Details:

Back to Top

3. State Dept. Releases Info and Tips for U.S. Citizens in Ukraine

The Department of State (DOS) released information on March 4, 2022, for U.S. citizens in Ukraine, including an online form to enable DOS to communicate with U.S. citizens, telephone numbers for immediate assistance, and advice and tips:

  • The online form is at https://cacms.state.gov/s/crisis-intake
  • S. citizens seeking to leave Ukraine can call 1-833-741-2777 (in the United States) or 1-606-260-4379 (from overseas) for immediate assistance.
  • DOS encourages U.S. citizens to enroll in its Smart Traveler Enrollment Program (STEP). STEP enrollment provides the latest security updates and makes it easier for the U.S. Embassy to contact citizens in the event of an emergency.

The notice includes additional information, including specific tips on how to prepare when crossing a border during a crisis, and on entering neighboring countries from Ukraine.

Details:

  • “Information for U.S. Citizens in Ukraine,” which includes border-crossing advice,

Back to Top

4. DHS Designates Sudan, Extends/Redesignates South Sudan for Temporary Protected Status

Due to “political instability and unrest” and “armed conflict in South Sudan,” which has displaced millions, the Department of Homeland Security (DHS) designated Sudan and extended and redesignated South Sudan for Temporary Protected Status (TPS) for 18 months.

Individuals newly eligible for TPS under the Sudan designation must have continuously resided in the United States since March 1, 2022. This includes those who benefited from the previous TPS designation for Sudan, which required continuous residence in the United States on or before January 9, 2013.

The 18-month extension and redesignation of South Sudan for TPS will be effective May 3, 2022, through November 3, 2023. To be eligible, individuals must have continuously resided in the United States since March 1, 2022, and meet all other TPS eligibility criteria. The extension of South Sudan allows currently eligible TPS South Sudan beneficiaries to re-register and retain TPS through November 3, 2023, as long as they otherwise continue to meet the TPS eligibility requirements. DHS noted that the redesignation of South Sudan allows additional individuals who have been continuously residing in the United States since March 1, 2022, to obtain TPS, if otherwise eligible.

TPS applicants must meet all eligibility requirements and undergo security and background checks. The Federal Register notices include instructions for applying for TPS and an Employment Authorization Document.

Details:

Back to Top

5. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From South Sudan

The Department of Homeland Security (DHS) announced that it is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Republic of South Sudan, regardless of country of birth (or individuals having no nationality who last habitually resided in South Sudan), and who are experiencing severe economic hardship as a direct result of the humanitarian crisis in South Sudan. The notice is effective March 3, 2022, through November 3, 2023.

The Federal Register notice from U.S. Immigration and Customs Enforcement (ICE) announcing the suspension explained that an eligible F-1 nonimmigrant student may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 status. The notice states that DHS will deem such a student who receives employment authorization 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 described in the notice.

Details:

Back to Top

6. FY 2022 H-1B Cap Reached

On February 28, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2022, which ends September 30, 2022.

USCIS said it has completed sending non-selection notices to registrants’ online account. The agency will continue to accept and process petitions that are otherwise exempt from the cap, including petitions “filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number.” USCIS said it will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

USCIS began its registration system for cap-subject H-1Bs for fiscal year 2023 on March 1.

Details:

Back to Top

7. H-2B Cap Reached for Second Half of FY 2022

On March 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2022. February 25, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2022, and before October 1, 2022. USCIS said it will reject new cap-subject H-2B petitions received after February 25, 2022, that request an employment start date on or after April 1, 2022, and before October 1, 2022.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including petitions for:

  • Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change employers;
  • Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam (until December 31, 2029).

Details:

Back to Top

8. Credit Card Payment Pilot Program Expanded to All Service Centers

Credit card payments are now being accepted at U.S. Citizenship and Immigration Services (USCIS) service centers using Form G-1450, Authorization for Credit Card Transactions, for all forms except Form I-129, Petition for a Nonimmigrant Worker, for H-1B and H-2A petitions.

USCIS said it will evaluate the results of the pilot program when it concludes, which previously was implemented at the Nebraska, Texas, Vermont, and California service centers. USCIS did not indicate when the pilot program would end.

Details:

Back to Top

9. USCIS Clarifies I-9 Guidance for Native American Tribal Documents, Others

U.S. Citizenship and Immigration Services (USCIS) recently clarified Form I‑9 guidance related to Native American Tribal documents in M‑274, Handbook for Employers.

The handbook explains that a Native American Tribal document is an official Tribal or community membership document issued by a Native American Indian Tribe, or an Alaska Eskimo or Aleut community, that is recognized by the U.S. federal government. A Tribal or community membership document that is issued by a Tribe or community that is not recognized by the U.S. federal government is not acceptable for Form I-9 employment eligibility verification purposes.

USCIS noted that because federal recognition of Tribes and communities can change over time, employers should check the Bureau of Indian Affairs (BIA) website to determine if the Tribe or community that issued the membership document is federally recognized. USCIS provided guidance to determine if a document is acceptable as evidence of both identity and employment authorization, or only for identity purposes.

The agency also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the handbook.

Details:

Back to Top

10. Biden Administration Considers TPS, Other Measures for Ukrainians; Advocacy Organizations Weigh In; Consular Services Suspended in Kyiv

According to reports, the Biden administration is considering implementing protections for Ukrainians in the United States, as Russia invades Ukraine in a rapidly developing situation expected to result in many refugees and displaced persons. Such relief in the United States could include a Temporary Protected Status (TPS) designation for Ukraine or a Deferred Enforced Departure (DED) presidential order.

Below are selected highlights of where things stand:

Advocacy Organizations Call for Relief

Immigration and refugee advocacy organizations are calling for the Biden administration to aid Ukrainian nationals in the United States. For example:

  • The Presidents’ Alliance on Higher Education and Immigration, a coalition of more than 500 college and university presidents, called on the Biden administration to designate Ukraine for TPS and special student relief (SSR) for Ukrainian international students residing or studying in the United States. Miriam Feldblum, Executive Director, noted that SSR would allow eligible students to remain in the United States by suspending or altering rules regarding status, full course of study, and work eligibility during the designation period. “International students from Ukraine will likely face significant obstacles and complexities in the coming weeks, months, and years; and uncertainty over their courses or ability to remain in the United States should not be one of those obstacles,” she said.
  • The 15,000-member American Immigration Lawyers Association (AILA) called for expeditious processing and humanitarian relief such as TPS for Ukrainians in the United States and a moratorium on removals.
  • Kids in Need of Defense (KIND) also called for TPS and provided a sign-on letter to the Biden administration. KIND President Wendy Young said, “We encourage nations to receive those fleeing Ukraine at the border, grant them access to asylum procedures, and help these refugees reach and reunify with family that may have fled to other parts of Europe.”

According to estimates, of the roughly 104,600 Ukrainian noncitizens in the United States, about 30,000 would be potential TPS or DED beneficiaries, as they do not have U.S. citizenship or permanent resident status.

Consular Services Suspended; Help at Borders

In related developments, consular services in Kyiv have been suspended. Applicants for U.S. nonimmigrant visas may apply in any country in which they are physically present and where there are appointments available, the Department of State said. Those who have an immigrant visa case currently pending with U.S. Embassy Kyiv and would like to transfer processing of an immigration case to another U.S. Embassy must contact the receiving U.S Embassy in that country to authorize and initiate the transfer.

The Department of State announced that Poland is allowing U.S. citizens to enter Poland through the land border with Ukraine. No advance approval is required. The Department provided additional information for U.S. citizens in Ukraine and for those departing it, including advice on border crossings where consular officers are stationed to provide assistance in Poland, Romania, Hungary, Slovakia, and Moldova.

Donetsk/Luhansk Persons Denied Unrestricted Entry

An executive order issued February 21, 2022, suspends the unrestricted immigrant and nonimmigrant entry into the United States of certain persons operating in the Donetsk or Luhansk regions of Ukraine.

Details:

Back to Top

11. USCIS No Longer Accepts Single Combined Payments on Certain Forms Filed With H-1B or H-1B1 Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on February 25, 2022, that for all H-1B and H-1B1 petitions received on or after April 1, 2022, USCIS will no longer accept a single, combined fee payment when Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; or Form I-824, Application for Action on an Approved Application or Petition, is filed together with an H-1B or H-1B1 petition (Form I-129, Petition for a Nonimmigrant Worker). Each of these forms received by USCIS on or after April 1 must have its own fee payment instrument or USCIS will reject the entire package. Only the fee for Form I-907, Request for Premium Processing Service, may be combined with the fee for a concurrently filed Form I-129 requesting H-1B classification, USCIS said.

USCIS explained that it is transitioning to electronic processing of immigration benefit requests. As the agency completes this transition, it will be using multiple systems to receipt and process various types of immigration benefit requests. Because H-1B and H-1B1 petitions and related applications are not all processed in the same system, USCIS said it requires a separate payment instrument for each of these forms.

Details:

Back to Top

12. USCIS Releases Statistics on H-1B Cap Registrations, Cracks Down on Multiples

U.S. Citizenship and Immigration Services (USCIS) recently released statistics on the H-1B cap registration process. Registrations were submitted by more than 37,000 prospective petitioners. Roughly 48 percent of all registrations requested consideration under the advanced degree exemption.

The initial projected number of registrations required to meet the numerical limitations for FY 2022 was lower than the initial projected number of registrations required for FY 2021. A reason for this may be that USCIS is cracking down on multiple registrations on behalf of the same beneficiary. USCIS said that if it finds that a company worked with another entity to submit multiple registrations for the same beneficiary, which would violate the required employer attestation, USCIS will find that registration to be not properly submitted and may deny or revoke the petition.

USCIS also noted:

  • For FY 2021, USCIS received 274,237 H-1B registrations and initially selected 106,100 registrations projected as needed to reach the FY 2021 numerical allocations. USCIS conducted a second selection in August 2020 of an additional 18,315 registrations due to low filing volume from the initial selection. This resulted in a total of 124,415 selected registrations.
  • For FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations. On July 29, 2021, USCIS announced that it conducted a second selection of an additional 27,717 registrations. This resulted in a total of 115,217 selected registrations. The petition filing period based on registrations selected on July 28 began on August 2 and closed on November 3. On November 19, 2021, USCIS announced that it conducted a third selection of an additional 16,753 registrations. This resulted in a total of 131,970 selected registrations. The petition filing period based on registrations selected on November 19 began on November 22, 2021, and closed on February 23, 2022.

USCIS said that those with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

Details:

Back to Top

13. USCIS Releases Notice in Response to Class Action for Certain Cuban Nationals Denied Adjustment

U.S. Citizenship and Immigration Services (USCIS) released a notice for certain Cuban nationals who were denied Cuban adjustment for lack of a parole document. The notice states that they are eligible to file I-290B (Notice of Appeal or Motion) for up to one year, or a new I-485 (Application to Register Permanent Residence or Adjust Status).

USCIS released the notice in response to a class action lawsuit, Rabelo v. Mayorkas.

Details:

Back to Top

14. USCIS Urges Eligible Applicants to Switch Employment-Based Categories

U.S. Citizenship and Immigration Services (USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status applications to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories. USCIS said this is because of the availability of an exceptionally high number of employment-based immigrant visas in these green card categories during fiscal year (FY) 2022.

USCIS explained that the overall employment-based annual limit for fiscal year 2022 is approximately twice as high as usual because it includes all unused family-sponsored visa numbers from FY 2021, which was approximately 140,000.

In addition, USCIS noted, under the relevant statute, any visas not required in the fifth employment-based preference category are made available in the first employment-based preference category, and any visas not required in the first employment-based preference category are made available in the second employment-based preference category.

These visas cannot be made available to applicants in the third employment-based preference category because, given the significant number of noncitizens awaiting visas in the second employment-based preference category, these visas must be used for the second preference category., USCIS said.

Details:

Back to Top

15. Visa Bulletin for March Includes Updates on Employment-Based Expirations and Retrogressions

The Department of State’s Visa Bulletin for March 2022 includes the following updates:

  • Final action dates for the employment-based fifth preference I5 and R5 regional center visa categories are “Unavailable” for March. If legislative action extends this category for March, the final action dates would immediately become “Current” for March for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
  • Final action dates have retrogressed for the employment-based fourth and Certain Religious Workers (SR) categories for El Salvador, Guatemala, and Honduras to hold worldwide number use within the maximum allowed under the FY 2022 annual limits.
  • The non-minister special immigrant program expired on February 18, 2022. No SR visas may be issued overseas or final action taken on adjustment of status cases in that category.
  • The SR category is “Unavailable” for all countries for March. If legislative action extends the category, it will become “Current” effective immediately for all countries except El Salvador, Guatemala, and Honduras, which are subject to a May 1, 2017, final action date, and Mexico, which is subject to an April 1, 2020, final action date.

Details:

Back to Top

16. DHS To Propose ‘Fair and Humane’ Public Charge Rule

The Department of Homeland Security (DHS) announced on February 17, 2022, a proposed rule that would regulate how DHS applies the public charge ground of inadmissibility. The proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States, DHS said

DHS Secretary Alejandro N. Mayorkas said, “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”

Under the proposed rule, DHS proposes to define “likely at any time to become a public charge” as “likely to become primarily dependent on the government for subsistence.” Consistent with longstanding agency practice, DHS proposes to consider the following public benefits when making a public charge inadmissibility determination:

  • Supplemental Security Income (SSI);
  • Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;
  • State, Tribal, territorial, and local cash assistance for income maintenance; and
  • Long-term institutionalization at government expense.

DHS proposes that it will not consider noncash benefits such as food and nutrition assistance programs, including the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program, most Medicaid benefits (except for long-term institutionalization at government expense), housing benefits, and transportation vouchers. DHS would also not consider disaster assistance received under the Stafford Act; pandemic assistance; benefits received via a tax credit or deduction; or Social Security, government pensions, or other earned benefits.

By law, many categories of noncitizens are exempt from the public charge ground of inadmissibility and would not be subject to the proposed rule, DHS noted. Some exempt categories include refugees, asylees, noncitizens applying for or re-registering for temporary protected status (TPS), special immigration juveniles, T and U nonimmigrants, and self-petitioners under the Violence Against Women Act (VAWA).

Details:

Back to Top

17. Two California Executives Charged With Fraud in Obtaining Dozens of H-1B Specialty Occupation Visas

The U.S. attorney’s office for the Northern District of California announced that two executives of Perfect VIPs, Inc., which was incorporated in 2010 as a computer chip design product and services company, were indicted on charges of visa fraud and conspiracy to commit visa fraud. One of the executives was also charged with money laundering. The indictment alleges that they submitted approximately 85 fraudulent H-1B visa applications and laundered $1 million in fraud proceeds.

Once the applications were approved, instead of employing the workers, the two executives created a pool of H-1B workers and placed them at employment positions with other employers, not with PerfectVIPs, the indictment alleges. “This practice provided PerfectVIPs an unfair and illegal advantage over employment-staffing firms,” the U.S. attorney’s office stated. During the period of their conspiracy, the indictment alleges, the other employers paid fees of nearly $7 million to PerfectVIPs to cover the cost of the H-1B workers’ wages and salaries as well as a profit markup for PerfectVIPs.

The company is headquartered in San Jose, California. The executives live in Saratoga and Santa Clara.

Details:

Back to Top

18. United States Once Again ‘Welcomes’ Immigrants: USCIS Announces New Mission Statement

U.S. Citizenship and Immigration Services (USCIS) announced a new mission statement after asking its employees to “submit words that they felt best illustrated the agency’s work.” The new mission statement reflects that feedback, along with Biden administration priorities and Director Ur Jaddou’s “vision for an inclusive and accessible agency,” USCIS said in a news release on February 9, 2022. The agency has 19,000 employees and contractors working at more than 200 offices worldwide.

The new mission statement says, “USCIS upholds America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.” The USCIS mission statement web page also lists and describes the agency’s “core values,” including integrity, respect, innovation, and vigilance.

The new mission statement, with its emphasis on welcoming and respect, reflects USCIS’s restoring of the agency’s focus on services. The revision is a shift away from the previous administration’s changes emphasizing security and dropping the phrase, “America’s promise as a nation of immigrants.”

In a statement announcing the new mission statement, Director Jaddou said, “At its core, USCIS is about delivering decisions to families, businesses, workers, and those seeking refuge in our country on their applications, petitions, requests, and appeals. This new mission statement reflects the inclusive character of both our country and this agency.”

The American Immigration Lawyers Association (AILA) “applauded” the new mission statement. Benjamin Johnson, AILA Executive Director, said the new statement “hopefully signals a return to a welcoming, service-driven USCIS that faithfully administers its statutory purpose with integrity.”

Details:

Back to Top

19. USCIS Updates Guidance, Changes Maximum Validity Period for EADs for Certain Applicants

U.S. Citizenship and Immigration Services (USCIS) published updated policy guidance, effective February 7, 2022, that changes the maximum validity period that may be granted for employment authorization documents (EADs) issued to certain applicants, and provides general guidance on adjudicating Form I-765, Application for Employment Authorization.

USCIS is now generally granting new and renewed EADs valid for two years to applicants in the following categories:

  • Admitted as a refugee (a)(3)
  • Granted asylum (a)(5)
  • Granted withholding of deportation or removal (a)(10)
  • Violence Against Women Act self-petitioner (c)(31)

Additionally, USCIS is generally granting new and renewed EADs, up to the end of the parole or deferred action period, to applicants in the following categories:

  • Paroled into the United States for urgent humanitarian reasons or significant public benefit (c)(11)
  • Granted deferred action (non-DACA) (c)(14)

USCIS said that increasing the maximum validity period for these categories “will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.”

New and renewed EADs issued for affected categories on or after February 7, 2022, will reflect the updated validity periods. EADs issued before February 7, 2022, are not affected. USCIS said it will continue to issue replacement EADs with the same validity date as the original EAD.

Details:

  • USCIS alert, Feb. 7, 2022,

Back to Top

20. USCIS Clarifies Guidance on Temporary Need Requirement for H-2B Workers in Guam and Northern Marianas

U.S. Citizenship and Immigration Services (USCIS) clarified its guidance on how petitioners may demonstrate that they qualify for an exemption from the temporary need requirement for a nonimmigrant visa petition for a temporary nonagricultural H-2B worker on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) that falls under the Fiscal Year 2021 National Defense Authorization Act.

Specifically, the guidance clarifies how petitioners may demonstrate, depending on the facts presented in each case, that they qualify for the exemption based on contracts or subcontracts that are “supporting” or “adversely affected by” the military realignment on Guam and in the CNMI.

Details:

  • USCIS alert, Feb. 8, 2022,

Back to Top

21. New Lockbox Facility Opens in Illinois

U.S. Citizenship and Immigration Services (USCIS) opened a new lockbox facility in Elgin, Illinois, and is “beginning to transition incoming work to the new location.”

On February 1, 2022, USCIS added Elgin as a filing location for certain applicants Form I-751, Petition to Remove Conditions on Residence. In the coming weeks, the agency plans to move additional workloads to the Elgin lockbox, including certain applicants filing Form N-400, Application for Naturalization, and Form I-130, Petition for Alien Relative. The transition to Elgin is expected to be completed by late summer 2022.

USCIS said it also expects to move the lockbox facility in Arizona from Phoenix to Tempe in fall 2022.

Details:

Back to Top

22. DHS, VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Families

On February 7, 2022, the Department of Homeland Security (DHS), in partnership with the Departments of Veterans Affairs and Defense, launched new resources to support U.S. noncitizen service members, veterans, and their families. Through its Immigrant Military Members and Veterans Initiative (IMMVI), DHS said it will host a “one-stop online center to consolidate relevant federal resources.” As part of the resource center, DHS has also created a portal for veterans who need assistance in applying to return to the United States or accessing VA benefits to which they may be entitled.

Details:

Back to Top

New Publications and Items of Interest

Listening session on stateless individuals. USCIS will host a listening session on Tuesday, March 8, 2022, from 12:30 to 1:30 pm ET on immigration protections for stateless individuals living in the United States. USCIS seeks feedback on terms and definitions, protections, evidentiary issues, and the determination process. USCIS said that without congressional action, it does not have the legal authority to create an immigration status or path to naturalization for individuals based solely on statelessness, but that it is considering what existing immigration protections stateless individuals might be eligible for and benefit from, and how to maximize their access to such protections. https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-listening-session-immigration-protection-for-stateless-individuals-living-in-the-united-states

H-2A employer data hub. USCIS has launched an H-2A employer data hub to provide information to the public on employers or agents petitioning for H-2A workers. It follows the launch of the H-1B Data Hub in 2019 and the H-2B Data Hub in 2021. The data hub allows the public to search for H-2A petitioners by fiscal year from 2015 through 2021. https://www.uscis.gov/newsroom/alerts/uscis-launches-h-2a-employer-data-hub

Lockbox tip sheet. The Citizenship and Immigration Services Ombudsman worked with U.S. Citizenship and Immigration Services (USCIS) to develop a tip sheet on how to avoid common mailing errors when filing with the USCIS Lockbox. The tip sheet also provides information on navigating recent changes to USCIS Lockbox filing locations. https://www.dhs.gov/sites/default/files/2021-12/Lockbox%20Tip%20Sheet%20FINAL%2012.23.21.pdf

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:

Back to Top

ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by Forbes in “Immigration Policies at USCIS Lead to Denials of L-1B Petitions.” She said, “Some at USCIS have never understood the L-1 standard even though they have good guidance in the Adjudicator’s Field Manual. To properly apply it, each case must be evaluated individually—you cannot template an adjudication.” She also said she believes that a number of adjudicators “do not understand what preponderance of the evidence means” and are not comfortable approving cases where something is “more likely than not,” even though that is the legal standard. https://www.forbes.com/sites/stuartanderson/2022/02/16/immigration-policies-at-uscis-lead-to-denials-of-l-1b-petitions/?sh=60419abe1301

Vic Goel (bio: https://www.abil.com/lawyers/lawyers-goel.cfm?c=US) was quoted by Forbes in “Immigration Policies at USCIS Lead to Denials of L-1B Petitions.” He said, “Given that most clients and attorneys understand the requirements and aren’t interested in wasting significant time or money in filing speculative cases that aren’t approvable, it’s odd that denial rates for L-1B cases are substantially higher than for other business immigration cases. USCIS policy sets a very high bar for approval of cases involving specialized knowledge workers, requiring firms to document how a given worker’s knowledge of a company’s product, processes, research, or other interests is special or advanced relative to other employees. While the standard is not insurmountable, USCIS applies it in a way that favors documentary evidence while discounting the company’s own assessments of the worker’s importance and knowledge, notwithstanding that company officials are typically in the best position to determine whether an employee’s knowledge is truly special.” https://www.forbes.com/sites/stuartanderson/2022/02/16/immigration-policies-at-uscis-lead-to-denials-of-l-1b-petitions/?sh=60419abe1301

Charles Foster, of Foster LLP, addressed the state of immigration during his presentation, “The Need for U.S. Immigration Reform,” in a meeting for the Kiwanis Club of Houston, Texas, on February 17, 2022.

Mr. Foster was interviewed by KPRC in “Galveston County Law Enforcement Continues Sending Resources to the Border.” He said, “Congress has to solve this.” Regarding the impact on immigration courts of increased incidents along the border, Mr. Foster said, “We have taken a bad situation and it’s getting worse daily. We need more immigration judges, trial attorneys and asylum officers.”

Mr. Foster was a featured speaker at the 2022 kickoff meeting for ITServe Alliance Houston, the Houston, Texas, branch of a large network of Indian American IT and related companies.

Mr. Foster spoke at the grand opening of the Blossom Hotel on February 8, 2022, along with Bob Harvey, Chairman of the Greater Houston Partnership, and Houston Mayor Sylvester Turner. The Blossom Hotel is near the Texas Medical Center’s planned “TMC3” project, the “world’s largest life sciences campus,” which will bring together a large number of tech companies involving health-related technologies from across the United States. https://www.tmc.edu/news/2021/08/texas-medical-center-launches-worlds-largest-life-science-campus/

Mr. Foster will be a keynote speaker at a sculpture dedication honoring Lyndon Baines Johnson. The event will be held at the Holocaust Museum of Houston, Texas, on Monday, February 21, 2022.

Karuna Chandani Simbeck was promoted to partner at Klasko Immigration Law Partners, LLP. As part of the EB-5 team, Ms. Simbeck has assisted hundreds of immigrant investors. With years of experience in EB-5, she has prepared hundreds of I-526 petitions for clients from countries such as India, South Africa, the Philippines, Singapore, Vietnam, Turkey, the United Kingdom, and China. Ms. Simbeck is often called on to review petitions, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs) for other law firms, among her other activities. https://www.klaskolaw.com/wp-content/uploads/2022.01-Press-Release-Karuna-Chandani-Simbeck-Promoted-to-Partner.pdf

Andrew Zeltner was promoted to partner at Klasko Immigration Law Partners, LLP. He is an experienced employment-based immigration attorney and has been assisting clients for 20 years. He handles a wide array of corporate immigration matters and also assists individual clients. He has particular experience with hospitals and organizations in the medical field, artists and performers, universities, and innovative startups. He has significant experience providing employment-based U.S. immigration services. He has provided extensive advice to human resources professionals and corporate counsel regarding immigration compliance matters including I-9 and LCA compliance issues. https://www.klaskolaw.com/news/press-release-andrew-j-zeltner-elected-to-partnership-at-klasko-immigration-law-partners/

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was an invited speaker at the American Immigration Lawyers Association’s New England Chapter meeting on February 24, 2022, where he spoke on strategies in the face of visa retrogression in employment-based categories, including multiple filings for the same employee in different categories. Magaly R. Cheng was the other invited speaker. She is a partner in Clark Lau LLC.

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?,” http://blog.cyrusmehta.com/2022/02/huh-why-should-requesting-a-transfer-of-underlying-basis-with-an-i-485-supplement-j-restart-the-180-day-portability-clock.html; “Maintenance of H-1B Status After Travelling Back on Advance Parole: Executive Legerdemain under the Cronin Memo.”

Mr. Mehta was Program Chair of the Practising Law Institute’s “Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas” on February 3, 2022. The webcast of this program is at https://www.pli.edu/programs/B/basic-immigration-law

Mr. Mehta was Program Chair of the Practising Law Institute’s “Asylum, Special Immigrant Juvenile Status, Crime Victim and Other Immigration Relief 2022” on February 4, 2022. The webcast of this program is at https://www.pli.edu/programs/asylum-special-immigrant-juvenile-status-crime-victim-and-other-immigration-relief

Mr. Mehta was a speaker at the American Immigration Lawyers Association’s Washington Chapter Ethics CLE on February 10, 2022.

Siskind Susser, Kuck Baxter, and Joseph & Hall have partnered to file a lawsuit challenging USCIS’s and the State Department’s refusal to process EB-5 regional center cases. They are working with the Galati Law Firm on this case. The deadline for plaintiffs to join the case is March 5, 2022. https://www.immpactlitigation.com/eb-5-regional-center-litigation-2022/

Wolfsdorf Rosenthal LLP has published several new blog posts: “Short Video Series: H-1B Process Videos”; “DHS Announces National Interest Exception for ‘Noncitizen Nonimmigrants’ Traveling From Ukraine With a U.S. Citizen or Lawful Permanent Resident”; “March 2022 Visa Bulletin Update”; “2022 Immigration Outlook: Countries Compete for Talent—Will the U.S. Be Left Behind?”; “EB-5 Regional Center Program Update—Another Short-Term Extension Without Regional Center Reauthorization Possible,” “H-1B Cap Webinar: Critical Registration Process Updates and H-1B Cap FAQs From HR Professionals,” and “A Video Guide to Navigating H-1B Cap Season.” https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will moderate a free public webinar on Wednesday, March 9, 2022, from 1 to 2 pm ET, “After the Fall: The Future of Afghan Allies Fleeing the Taliban.” Speakers include Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. https://ecornell.cornell.edu/keynotes/overview/K030922a/

Mr. Yale-Loehr was quoted by the Cornell Chronicle in “Experts: Ukraine War Puts World in ‘Uncharted Territory.’ ” Mr. Yale-Loehr served on a panel on March 4, 2022, to discuss the humanitarian crisis just beginning after the Russian invasion of Ukraine. Mr. Yale-Loehr noted that, as high as the numbers are of Ukrainians fleeing their country, we shouldn’t forget other hot spots like Syria and Afghanistan that have contributed to the highest levels of displacement on record, with an estimated 84 million people displaced worldwide by persecution, conflict, violence, and human rights violations. “Our international refugee system is reeling from all these crises and wars. The war in Ukraine is simply the most recent.” Mr. Yale-Loehr advised those wondering how to help to donate to organizations such as the International Rescue Committee or International Refugee Assistance Project and ask members of Congress to spend more on refugee assistance and increase the number of refugees admitted by the United States. “This shows how interconnected we all are,” he said. https://news.cornell.edu/stories/2022/03/experts-ukraine-war-puts-world-uncharted-territory (recording of livestream: https://ecornell.cornell.edu/keynotes/view/K030422/)

Mr. Yale-Loehr was interviewed by Al Jazeera as part of a show about Afghans at risk. Mr. Yale-Loehr’s segment starts at about 19:00 in the show. https://www.youtube.com/watch?v=pvkfo_xjFiQ

Mr. Yale-Loehr was quoted by the New York Times in “Afghans Who Bet on Fast Path to the U.S. Are Facing a Closed Door.” He said, “The refugee resettlement program is overwhelmed and lacks resources because of all the cuts the prior administration made.” https://www.nytimes.com/2022/02/16/us/afghan-refugees-humanitarian-parole.html (available by subscription)

Back to Top

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/travel/en/legal/visa-law0/visa-bulletin.html

Back to Top

ABIL Immigration Insider • March 7, 2021

/in /by

In this issue:

1. Dept. of State Issues New Guidance on Exceptions for Travelers From Schengen Area, United Kingdom, and Ireland – The Department of State rescinded the previous national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamation (PP) 10143 related to the Schengen Area, the United Kingdom, and the Republic of Ireland. Those categories included “certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents.” The Department also made a new national interest determination covering “certain travelers seeking to provide vital support for critical infrastructure. Travelers in these categories, as well as certain academics, students, and journalists, may qualify for national interest exceptions to PP 10143 related to the Schengen Area, the United Kingdom, and Ireland.

2. USCIS Releases Tips to Avoid Common Mistakes in H-1B Registration – USCIS released tips to avoid common mistakes when filing an H-1B electronic registration. The agency said the top two user errors were creating the wrong type of account and entering the same beneficiary more than once.

3. E-Verify Updates SSA Tentative Nonconfirmation Process – Employees who receive the SSA TNC with a citizenship mismatch now have the option to call the Department of Homeland Security to resolve their cases instead of visiting an SSA field office.

4. ICE Announces New Case Review Process – ICE announced the “ICE Case Review (ICR)” process for individuals who believe their case does not align with ICE’s enforcement, detention, and removal priorities.

5. OFLC Issues FAQ Guidance for Employers Affected by Texas and Oklahoma Severe Storms – The guidance includes information on how to contact OFLC; communications related to prevailing wage determinations, temporary visa programs, and the PERM program; deadlines/timeframe flexibility; worksite location moves and short-term placements due to storm-related circumstances; and other issues.

6. President Biden Revokes Trump-Era Ban on Entry of Many Immigrants; State Dept. Issues Instructions on Exceptions to Nonimmigrant Ban – President Biden revoked former President Trump’s proclamation issued in April 2020 that banned many immigrants from entering the United States. The Department of State issued instructions on exceptions to the nonimmigrant ban.

7. March Visa Bulletin Shows Big Leap Forward for Chinese and Indian EB-1s – The Department of State’s Visa Bulletin for March 2021 shows a seven-month leap forward for Chinese and Indian EB-1s, with a final action date of August 1, 2020, for both countries.

8. USCIS Updates FAQ on H-1B Electronic Registration – USCIS updated its frequently asked questions on the H-1B registration process, which opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021.

9. USCIS Extends Flexibilities for Certain F-1 Foreign Students Applying for OPT – USCIS announced flexibilities for certain foreign students applying for Optional Practical Training whose receipt notices for Form I-765, Application for Employment Authorization, are delayed. The flexibilities apply only to applications received from October 1, 2020, through May 1, 2021.

10. Federal Judge Blocks Biden Administration’s 100-Day Pause on Removals – A U.S. district judge in Texas blocked the Biden administration’s 100-day “pause” on certain removals announced in a memorandum on President Biden’s first day in office. The order applies nationwide but only to the 100-day pause, not to the entire memorandum.

11. USCIS Reverts to 2008 Version of Naturalization Civics Test – Starting March 1, 2021, USCIS is reverting from the 2020 revised version to the 2008 version of the naturalization civics test. There will be a transition period in which certain applicants can choose which test to take.

12. H-2B Cap Reached for Second Half of FY 2021 – February 12, 2021, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2021.

13. State Dept. Releases Update on Phased Resumption of Routine Visa Services – Among other things, DOS has extended the validity of machine-readable visa fees until September 30, 2022.

14. DOL Announces 2021 Adverse Effect Wage Rates for Non-Range Occupations – The new AEWRs are effective immediately, pursuant to a recent federal court order.

15. Premium Processing Service Now Available to Australian E-3 Petitioners – The E-3 classification applies only to nationals of Australia coming to the United States to perform services in a specialty occupation.

16. “U.S. Citizenship Act of 2021” Unveiled by Biden Administration, Democrats – The Biden administration and Democratic sponsors in the Senate and House of Representatives have put forth a sweeping new immigration reform bill, the 353-page “U.S. Citizenship Act of 2021.”

17. USCIS Reaches FY 2021 H-1B Cap – USCIS issued official confirmation that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for fiscal year 2021. This officially closes the FY 2021 H-1B cap season, which was based on the March 2020 registration period.

18. DV-2020 Winners Get Six-Month Reprieve – A U.S. district judge extended DV-2020 visas for six months so they will not lapse while he renders a decision on plaintiffs’ challenge to Trump-era travel bans that are still in place.

19. ICE Issues Interim Guidance on Civil Immigration Enforcement and Removal Priorities – The guidance prioritizes for removal noncitizens with a national security, border security, or public safety issue, as defined in the memorandum.

20. DHS Announces Process for Individuals in Mexico Under the Migrant Protection Protocols – DHS issued a fact sheet on its plan to process eligible individuals who have pending cases in the United States but were forced to return and wait in Mexico under the Trump administration’s “Migrant Protection Protocols (MPP).”

21. USCIS Clarifies Delays at Lockboxes in Issuing Receipt Notices for I-765 Employment Authorization for OPT – USCIS notified stakeholders that the agency continues to experience delays at certain lockboxes in issuing receipt notices for Form I-765, Application for Employment Authorization, based on eligibility categories relating to optional practical training (OPT) for F-1 students.

22. Dept. of State Revises Definition of “Equivalent of Diplomatic Passport” and Clarifies Eligibility for “Diplomatic Type” or “Official Type” Visa Categories – DOS issued a final rule to revise the definition of “equivalent of a diplomatic passport” and to clarify the categories of nonimmigrants who may be eligible for a “diplomatic type” or “official type” visa.

23. State Dept. Exempts Certain Travelers From Restrictions – DOS announced exemptions for certain travelers from COVID-19-related restrictions based on the national interest.

24. President Biden Reinstates DED for Liberians – President Biden has directed the Secretary of Homeland Security to reinstate Deferred Enforced Departure for eligible Liberians and to provide for continued work authorization through June 30, 2022.

25. New Asylum Process at Southern Border To Be Phased In Gradually – The Biden administration’s new asylum process will begin phasing in on February 19, 2021.

26. FY 2021 H-1B Cap-Subject Nonselection Notices Issued – USCIS appears to have finished selecting H-1B cap-subject lottery registrations for fiscal year 2021.

27. USCIS To Dispose of Old SAVE Records – SAVE users have until May 10, 2021, to download case information if they want to retain information about SAVE cases that are more than 10 years old.

28. ABIL Global: Belgium – A change in legislation is consequential for European Union/Schengen travel to Belgium.

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

Download:

ABIL Immigration Insider – March 2021

1. Dept. of State Issues New Guidance on Exceptions for Travelers From Schengen Area, United Kingdom, and Ireland

On March 2, 2021, the Department of State rescinded the previous national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamation (PP) 10143, issued on January 25, 2021. That proclamation barred the admission into the United States of individuals (other than U.S. citizens, lawful permanent residents, and certain other classes of foreign nationals) who were physically present in the Schengen area, the United Kingdom, the Republic of Ireland, Brazil, and South Africa during the 14 days prior to seeking admission to the United States. Affected categories of exceptions included “certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents.”

The Department also made a new national interest determination covering “certain travelers seeking to provide vital support for critical infrastructure. Travelers in these categories, as well as certain academics, students, and journalists, may qualify for national interest exceptions (NIEs) to PP 10143 related to the Schengen Area, the United Kingdom, and Ireland.

The Department said that no previously issued visas or NIEs will be revoked due to the new policy, and that qualified travelers who are applying for or have valid visas or ESTA authorization may travel to the United States even while PP 10143 remains in effect. The Department also continues to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Details:

Back to Top

2. USCIS Releases Tips to Avoid Common Mistakes in H-1B Registration

U.S. Citizenship and Immigration Services (USCIS) released tips to avoid common mistakes when filing an H-1B electronic registration. The agency said the top two user errors were creating the wrong type of account and entering the same beneficiary more than once.

USCIS noted that a prospective petitioner may only have one registration submitted per beneficiary per fiscal year. Once the initial registration period has closed, if the prospective petitioner has more than one registration submitted for the same beneficiary, USCIS will remove all registrations submitted for that beneficiary by that prospective petitioner. “This does not prevent other prospective petitioners or their representatives from submitting registrations for that same beneficiary, but they too need to ensure that each prospective petitioner only has one registration submitted for the beneficiary,” USCIS noted.

The agency said that those who submitted more than one registration for the same person while the initial registration period is still open can delete the extra submission(s) from their account until there is only one registration for the beneficiary. USCIS does not refund the $10 fee for a deleted duplicate registration.

If more than one registration was submitted by the same prospective petitioner for the same person and the initial registration period has closed, there is no way to correct this error.

The initial registration period closes after noon ET on March 25, 2021.

Details:

Back to Top

3. E-Verify Updates SSA Tentative Nonconfirmation Process

On March 4, 2021, E-Verify updated the Social Security Administration (SSA) Tentative Nonconfirmation (TNC) process. Employees who receive the SSA TNC with a citizenship mismatch now have the option to call the Department of Homeland Security to resolve their cases instead of visiting an SSA field office.

Details:

Back to Top

4. ICE Announces New Case Review Process

On March 5, 2021, U.S. Immigration and Customs Enforcement (ICE) announced the “ICE Case Review (ICR)” process for individuals who believe their case does not align with ICE’s enforcement, detention, and removal priorities.

Those requesting a detention case review can contact their local Enforcement and Removal Operations (ERO) field office for initial consideration. Cases of those detained in ICE custody or pending imminent removal will be prioritized, ICE said.

Details:

Back to Top

5. OFLC Issues FAQ Guidance for Employers Affected by Texas and Oklahoma Severe Storms

On March 4, 2021, the Department of Labor’s Office of Foreign Labor Certification (OFLC) released frequently asked questions on how its office is handling communications with employers affected by the Texas and Oklahoma severe winter storms.

The guidance includes information on how to contact OFLC; communications related to prevailing wage determinations, temporary visa programs, and the PERM program; deadlines/timeframe flexibility; worksite location moves and short-term placements due to storm-related circumstances; and other issues.

Details:

Back to Top

6. President Biden Revokes Trump-Era Ban on Entry of Many Immigrants; State Dept. Issues Instructions on Exceptions to Nonimmigrant Ban

On February 24, 2021, President Biden revoked former President Trump’s proclamation issued in April 2020 that banned many immigrants from entering the United States.

Biden Proclamation Revoking Immigrant Ban

Included in the Trump administration’s freeze on immigrant admissions were green cards for new immigrants and certain family members.

President Biden’s proclamation states that the Trump-era ban, whose stated purpose was to prevent entry by those who presented a risk to the U.S. labor market during the coronavirus outbreak, does not advance the interests of the United States. “To the contrary, it harms the United States” and “harms industries in the United States that utilize talent from around the world,” the new proclamation states. It also “harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received” fiscal year 2020 diversity visas.

The Biden proclamation orders the Departments of State, Labor, and Homeland Security to review any related regulations, orders, guidance, policies, or other agency actions and, as appropriate, issue revised guidance consistent with the new proclamation.

DOS Instructions on Exceptions to Nonimmigrant Ban

The new Biden proclamation did not lift a Trump-era ban on certain H-1B, H-2B, L-1, and J-1 temporary work visas, set to expire on March 31, 2021. It is unclear whether the Biden administration plans to revoke that ban before it expires. In the meantime, the Department of State announced on February 24, 2021, that those who believe they may qualify for a national interest or other exception should “follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.”

Details:

Back to Top

7. March Visa Bulletin Shows Big Leap Forward for Chinese and Indian EB-1s

The Department of State’s Visa Bulletin for March 2021 shows a seven-month leap forward for Chinese and Indian green card applicants in the employment-based first preference category, with a final action date of August 1, 2020, for both countries. In February, , immigrant visas were available for those with priority dates earlier than January 1, 2020.

The March bulletin also includes information on diversity category cut-offs for April and instructions on reporting address changes for overseas cases.

Details:

Back to Top

8. USCIS Updates FAQ on H-1B Electronic Registration

U.S. Citizenship and Immigration Services updated its frequently asked questions (FAQ) on the H-1B registration process, which opens at noon ET on March 9, 2021, and runs through noon ET March 25, 2021. USCIS also announced that employers and their representatives can create H-1B Registrant Accounts beginning at noon ET on March 2, 2021.

Details:

Back to Top

9. USCIS Extends Flexibilities for Certain F-1 Foreign Students Applying for OPT

U.S. Citizenship and Immigration Services (USCIS) announced flexibilities for certain foreign students applying for Optional Practical Training (OPT) whose receipt notices for Form I-765, Application for Employment Authorization, are delayed. The flexibilities apply only to applications received on or after October 1, 2020, through May 1, 2021.

To allow F-1 students to complete their full periods of requested OPT (up to 12 months), the 14-month period within which they must complete OPT will start from the date of approval of the I-765 for applications for post-completion OPT. Beginning on February 26, 2021, USCIS is approving applications for post-completion OPT with validity dates reflecting the same amount of time as originally recommended by the designated school official on Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

USCIS also said that F-1 students requesting post-completion OPT who receive I-765 approval for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the employment authorization document due to USCIS error.

USCIS is also accepting certain refiled I-765s for OPT and STEM (science, technology, engineering, and mathematics) OPT as filed on the original date until May 31, 2021.

Details:

Back to Top

10. Federal Judge Blocks Biden Administration’s 100-Day Pause on Removals

On February 23, 2021, a U.S. district judge in Texas blocked the Biden administration’s 100-day “pause” on certain removals announced in a memorandum on President Biden’s first day in office. The order applies nationwide but only to the 100-day pause, not to the entire memorandum.

“This preliminary injunction is granted on a nationwide basis and prohibits enforcement and implementation of the [100-day pause] in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum,” Judge Drew Tipton wrote. He said the Department of Homeland Security’s “core failure” was “its omission of a rational explanation grounded in the facts reviewed and the factors considered.” This “fatal” failure, Judge Tipton said, made the 100-day pause “arbitrary and capricious.”

Details:

Back to Top

11. USCIS Reverts to 2008 Version of Naturalization Civics Test

U.S. Citizenship and Immigration Services (USCIS) announced that it has reverted to the 2008 version of the naturalization civics test beginning March 1, 2021. USCIS said it determined that the “development process, content, testing procedures, and implementation schedule” for the Trump-era revision implemented on December 1, 2020, “may inadvertently create potential barriers to the naturalization process.”

Those who filed naturalization applications on or after December 1, 2020, and before March 1, 2021, “likely have been studying for the 2020 test,” USCIS noted. The agency will offer such applicants the option to take either the 2020 or the 2008 civics test. There will be a transition period where both tests are offered. The 2020 test will be phased out on April 19, 2021, for initial test-takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test, USCIS said.

Details:

Back to Top

12. H-2B Cap Reached for Second Half of FY 2021

U.S. Citizenship and Immigration Services (USCIS) has received enough petitions to meet the congressionally mandated H-2B cap for temporary nonagricultural workers for the second half of fiscal year (FY) 2021.

February 12, 2021, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2021. USCIS said it will reject new cap-subject H-2B petitions received after February 12 that request an employment start date before October 1.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

Back to Top

13. State Dept. Releases Update on Phased Resumption of Routine Visa Services

On February 24, 2021, the Department of State (DOS) released the latest update on phased resumption of routine visa services.

Among other things, the update notes that as a result of the pandemic, many visa applicants have paid the visa application processing fee but are still waiting to schedule a visa appointment. DOS said it is “working diligently to restore all routine visa operations as quickly and safely as possible.” In the meantime, DOS has extended the validity of machine-readable visa (MRV) fees until September 30, 2022, “to allow all applicants who were unable to schedule a visa appointment due to the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the fee they already paid.”

Details:

Back to Top

14. DOL Announces 2021 Adverse Effect Wage Rates for Non-Range Occupations

On February 23, 2021, the Department of Labor (DOL)’s Employment and Training Administration announced the 2021 Adverse Effect Wage Rates for the employment of temporary or seasonal H-2A nonimmigrant foreign workers to perform agricultural labor or services other than the herding or production of livestock on the range.

The AEWRs are effective immediately, pursuant to a recent federal court order in United Farm Workers v. Dept’ of Labor.

Details:

Back to Top

15. Premium Processing Service Now Available to Australian E-3 Petitioners

Petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting a change or extension of status to E-3 classification now have the option to request premium processing service for their petition, U.S. Citizenship and Immigration Services (USCIS) announced. The
E-3 classification applies only to nationals of Australia coming to the United States to perform services in a specialty occupation.

USCIS said that an Australian national who is outside the United States may apply for an E-3 nonimmigrant visa directly through the Department of State or, in the case of an individual already in the United States, by filing Form I-129 with USCIS.

Details:

Back to Top

16. “U.S. Citizenship Act of 2021” Unveiled by Biden Administration, Democrats

The Biden administration and Democratic sponsors in the Senate and House of Representatives have put forth a sweeping new immigration reform bill, the 353-page “U.S. Citizenship Act of 2021.” The bill states its purpose as providing an earned path to citizenship, addressing the root causes of migration, responsibly managing the southern border, reforming the immigrant visa system, and other goals. The bill does not emphasize enforcement.

The bill would amend the Immigration and Nationality Act by striking the term “alien” and replacing it with “noncitizen.” The term “alien” has been in use for centuries, but some find it demeaning. According to reports, Tracy Renaud, who is serving as acting director for U.S. Citizenship and Immigration Services, recently sent a memorandum to agency staff encouraging them to avoid use of the terms “alien” and “illegal alien” and instead to use “more inclusive language in the agency’s outreach efforts, internal documents and in overall communication with stakeholders, partners and the general public,” including “noncitizen” and “undocumented noncitizen” or “undocumented individual.”

It is likely that the bill will not pass intact, but smaller targeted pieces could be moved forward and supported separately. Another avenue being suggested for implementation is via the budget reconciliation process.

Below is a non-exhaustive list of selected highlights of the proposed legislation. The bill would:

  • Establish an “earned path to citizenship” for “eligible entrants” (and their spouses and children) that provides for an initial period of authorized admission as a “lawful prospective immigrant,” valid for six years and extendable. Qualifying individuals would also receive a work permit and travel authorization. A lawful prospective immigrant could become eligible for permanent residence after at least five years of prospective status. Prospective applicants would need to have been in the United States before 2021.
  • Raise to 170,000 (from 140,000) the annual number of employment-based immigrants, and add unused employment-based green cards to the maximum. (Derivatives of employment-based immigrants will not count against numerical caps.)
  • Provide permanent residence, without numerical limits, to international students with PhDs in science, technology, engineering, and math fields from U.S. universities.
  • Provide for adjustment to lawful permanent resident status for noncitizens who entered the United States as children (e.g., “Dreamers” under the Deferred Action for Childhood Arrivals program).
  • Provide permanent residence to those who have had an approved immigrant petition for 10 years.
  • Provide for adjustment to lawful permanent resident status for agricultural workers who have performed agricultural labor or services during the immediately preceding five-year period for at least 2,300 hours or 400 work days.
  • Provide for adjustment to lawful permanent resident status for certain nationals of countries designated for temporary protected status or deferred enforced departure.
  • Increase diversity green cards from 55,000 to 80,000 each year. (Derivatives of DV immigrants will not count against numerical caps.)
  • Eliminate employment-based per-country levels.
  • Increase immigrant visas for “other workers.”
  • Provide for the establishment of a procedure to temporarily limit admission of certain immigrants in geographic areas or labor market sectors that are experiencing high levels of unemployment.
  • Establish a pilot program for up to five years to admit annually up to 10,000 “admissible immigrants whose employment is essential to the economic development strategies of the cities or counties in which they will live or work.”
  • Consider prioritizing nonimmigrant visas (including H-1B) based on the wages offered by employers.
  • Allow work authorization for H-4 nonimmigrant spouses and children of H-1B nonimmigrants.
  • Provide for expediting legitimate trade and travel at ports of entry.
  • Authorize employment for asylum applicants who are not detained and whose applications have not been determined to be frivolous.
  • Establish an employment authorization commission to make recommendations on policies to verify the eligibility of noncitizens for employment in the United States.
  • Conduct a study on factors affecting employment opportunities for immigrants and refugees with professional credentials obtained in foreign countries.

The bill also includes provisions to address “migration needs by strengthening regional humanitarian responses for refugees and asylum seekers in the Western Hemisphere and [strengthen] repatriation initiatives, promote “immigrant and refugee integration,” address immigration court backlogs, and expand programs to address the “root causes of migration” and “responsibly [manage] the southern border.”

Details:

Back to Top

17. USCIS Reaches FY 2021 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) formally announced that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for fiscal year (FY) 2021. USCIS has also completed posting of non-selection notifications to registrants’ online accounts. This announcement formally closes the FY 2021 H-1B lottery season based on the registration period of March 2020. Any selected and timely filed FY 2021 H-1B petitions still pending adjudication with USCIS are included in the count and will proceed to adjudication.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Details:

Back to Top

18. DV-2020 Winners Get Six-Month Reprieve

A U.S. district judge extended DV-2020 immigrant visas for six months so they will not lapse while he renders a decision on plaintiffs’ challenge to Trump-era travel bans that are still in place.

“Even if the court were to declare the proclamations unlawful as plaintiffs request, a DV-2020 plaintiff who lacked a current, valid visa still could not enter the country. Accordingly, an order declaring the proclamations unlawful would provide no relief to a DV-2020 plaintiff without a current, valid visa,” the judge said in his opinion in Gomez v. Trump.

According to reports, shortly before the judge issued his order, the Department of State announced an exemption from the travel ban for diversity lottery green card winners whose visas will expire soon.

Details:

Back to Top

19. ICE Issues Interim Guidance on Civil Immigration Enforcement and Removal Priorities

On February 18, 2021, U.S. Immigration and Customs Enforcement (ICE) issued interim guidance, effective immediately, on priorities for enforcement actions, custody decisions, the execution of final orders of removal, financial expenditures, and strategic planning. The guidance will remain in effect until Alejandro Mayorkas, Department of Homeland Security Secretary, issues new enforcement guidelines, which are expected in fewer than 90 days.

The guidance prioritizes for removal noncitizens with a national security, border security, or public safety issue, as defined in the memorandum. Any civil immigration enforcement or removal actions that do not meet the criteria in the memorandum for “presumed priority” cases will require written justification and preapproval.

Details:

Back to Top

20. DHS Announces Process for Individuals in Mexico Under the Migrant Protection Protocols

The Department of Homeland Security issued a fact sheet on its plan to process eligible individuals who have pending cases before the Executive Office for Immigration Review and were forced to return to Mexico to await their hearing dates under the Trump administration’s “Migrant Protection Protocols (MPP).” DHS began processing a small group of such individuals under phase 1 on February 19, 2021.

A virtual registration process is available at https://conecta.acnur.org/.

Details:

Back to Top

21. USCIS Clarifies Delays at Lockboxes in Issuing Receipt Notices for I-765 Employment Authorization for OPT

U.S. Citizenship and Immigration Services (USCIS) notified stakeholders that the agency continues to experience delays at certain lockboxes in issuing receipt notices for Form I-765, Application for Employment Authorization, based on eligibility categories relating to optional practical training (OPT) for F-1 students. USCIS currently recommends that such applicants wait eight weeks before contacting the agency to ask about case status.

USCIS provided clarifications and reminders:

  • The delays will not affect the received date. All submissions are date-stamped upon arrival at the lockbox, so regardless of when the lockbox processes the application, the received date will reflect the date it actually arrived at the lockbox.
  • USCIS will not reject applications solely because they were filed at the lockbox address in use before the change to the filing address instructions announced on January 8, 2021. The agency encourages applicants filing Form I-765 to always check the form instructions on USCIS’s website for the most up-to-date filing instructions.
  • If an applicant timely filed Form I-765 based on STEM [science, technology, engineering, and mathematics] OPT, and the post-completion OPT period expires while the application is pending, USCIS will automatically extend the employment authorization for 180 days. The Form I-20 endorsed by the designated school official recommending a STEM extension together with the expired Form I-766 employment authorization document issued for post-completion OPT establishes identity and work authorization for purposes of documenting employment authorization.

Details:

Back to Top

22. Dept. of State Revises Definition of “Equivalent of Diplomatic Passport” and Clarifies Eligibility for “Diplomatic Type” or “Official Type” Visa Categories

The Department of State issued a final rule on February 22, 2021, to revise the definition of “equivalent of a diplomatic passport” to include non-national passports issued by a competent authority other than a foreign government and as designated by the Secretary of State; and to clarify the categories of nonimmigrants who may be eligible for a “diplomatic type” or “official type” visa, irrespective of the nonimmigrant visa classification.

Details:

  • Visas: Eligibility for Diplomatic and Official Visas, Final Rule, Dept. of State, Feb. 22, 2021,

Back to Top

23. State Dept. Exempts Certain Travelers From Restrictions

The Department of State announced exemptions for certain travelers from COVID-19-related restrictions based on the national interest:

  • On February 10, 2021, the Department of State (DOS) announced that certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom (UK), and Ireland. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) may travel to the United States while the PP remains in effect following the procedures below, DOS said.
  • Also, on January 28, 2021, DOS announced that certain H-2 travelers from South Africa may qualify for national interest exceptions.

Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Applicants who are otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.

Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class or an ESTA authorization issued before the PP’s effective date, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

“Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship,” DOS said.

H-2A and certain H-2B travelers who have been present in South Africa may qualify for national interest exceptions “if they are providing temporary labor or services essential to the United States food supply chain.” A non-exhaustive list of covered occupations includes seafood processors, fish cutters, salmon roe technicians, farm equipment mechanics, and agriculture equipment operators. Applicants applying for a visa will be considered for an exception at the time of interview, DOS said. “Travelers who already hold valid H-2A or food-supply-chain related H-2B visas and believe they meet the exception criteria should follow the procedures set forth on the Embassy/Consulate website where their visa was processed for consideration for an exception,” DOS said. The exception criteria only apply to H-2 travelers and applicants subject to a January 25, 2021, Presidential Proclamation due to physical presence in South Africa.

DOS said it continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Details:

Back to Top

24. President Biden Reinstates DED for Liberians

President Biden has directed the Secretary of Homeland Security to reinstate Deferred Enforced Departure (DED) for eligible Liberians and to provide for continued work authorization through June 30, 2022.

Eligible Liberian nationals (and persons without nationality who last habitually resided in Liberia) covered under DED as of January 10, 2021, may remain in the United States through June 30, 2022. Their employment authorization documents (EADs) with a March 30, 2020, or January 10, 2021, expiration date are automatically extended through June 30, 2022.

U.S. Citizenship and Immigration Services said that reinstating DED “will allow additional time for eligible Liberians to apply for adjustment of status on or before Dec. 20, 2021, under the extension of the Liberian Refugee Immigration Fairness (LRIF) provision. Liberians who apply for adjustment of status under LRIF may immediately apply for employment authorization consistent with that provision. Individuals who applied for LRIF but were denied are not covered under this DED extension.”

Details:

Back to Top

25. New Asylum Process at Southern Border To Be Phased In Gradually

According to reports, the Biden administration’s new asylum process at the southern border began phasing in on February 19, 2021. The Department of Homeland Security started with a very small number of asylum-seekers from the estimated 25,000 who have “active cases” in the former Migrant Protection Protocols program. Few details have been shared in an effort to avoid overwhelming ports of entry.

Secretary of Homeland Security Alejandro Mayorkas warned migrants not to begin traveling to the U.S. border immediately. “It’s a very, very important cautionary note that they should not travel to the border. That will only increase the pressure on the humanitarian effort to provide for them carefully and safely,” he said.

The new system, publicized via social media networks, includes registration with certain nongovernmental organizations (NGOs), according to National Public Radio. After initial screening, there are additional steps, including an appointment to enter the United States and be tested for the coronavirus. They are then enrolled in “alternative detention programs” while awaiting their asylum proceedings.

The effort also includes rescinding Trump-era agreements with El Salvador, Guatemala, and Honduras “as efforts to establish a cooperative, mutually respectful approach to managing migration across the region begin,” Secretary of State Antony Blinken said.

Details:

Back to Top

26. FY 2021 H-1B Cap-Subject Nonselection Notices Issued

According to reports, U.S. Citizenship and Immigration Services (USCIS) appears to have finished selecting H-1B cap-subject lottery registrations for fiscal year (FY) 2021 (Oct. 1, 2020-Sept. 30, 2021). Employers and counsel who have not yet been notified can check their accounts in https://my.uscis.gov/ for a Form I-797C, Registration Nonselection. (The nonselection notices include a typo referring to FY 2022 rather than FY 2021. USCIS said it will send corrected notices.)

Details:

Back to Top

27. USCIS To Dispose of Old SAVE Records

On May 14, 2021, U.S. Citizenship and Immigration Services (USCIS) will dispose of Systematic Alien Verification for Entitlements (SAVE) records that are more than 10 years old, which are defined as those dated on or before December 31, 2010. SAVE users have until May 10, 2021, to download case information from the Historic Records Report if they want to retain information about these SAVE cases.

Questions and requests for additional information may be emailed to [email protected].

Details:

Back to Top

28. ABIL Global: Belgium

A change in legislation is consequential for European Union (EU)/Schengen travel to Belgium.

A change in legislation, published in the Belgian Official Journal on January 26, 2020, and effective January 27, 2021, is having substantial consequences for EU/Schengen travel to Belgium.Between January 27, 2021, and March 1, 2021, all non-essential travel was forbidden for all those whose main place of residence is located abroad. The Belgian State Council recently extended the ban until April 1, 2021. This does not change the situation for travel from most third countries, which was already limited to non-essential travel. However, the EU/Schengen travel restriction was new. Third countries are defined as non-EU/non-Schengen countries.The definition of essential travel and the required formalities depend on the country of origin and/or citizenship:·

  • Travel from a third country, other than “safe” third countries (currently Australia, South Korea, Japan, New Zealand, Rwanda, Singapore, and Thailand), by a third country national with main residence in the third country (e.g., United States, Canada, India): An overview of essential travels is available at the website of the Belgian federal immigration office (point 2.2., https://dofi.ibz.be/sites/dvzoe/EN/Pages/International%20travels.aspx). An essential travel certificate, issued by the Belgian embassy/consulate with jurisdiction, will in principle be required. Before the traveler boards, the transporter must check whether an essential travel certificate is available. If not, boarding must be refused.·
  • All other travels by non-residents (e.g., travel from an EU/Schengen country; travel from a “safe” third country (see list above); travel by an EU/Schengen country national): A sworn statement must be completed by the traveler (see https://d34j62pglfm3rr.cloudfront.net/downloads/20210126_BU_Verklaring_op_eer_Finaal_EN_Goedgekeurd_Blanco.pdf). The sworn statement lists all essential travels; the relevant travel purpose must be selected (see also the website of the Belgian federal immigration office—point 2.1., https://dofi.ibz.be/sites/dvzoe/EN/Pages/International%20travels.aspx). Before the traveler boards, the transporter must check whether a sworn statement was completed. If not, boarding must be refused. Failure to make a sworn statement or making a false, misleading, or incomplete statement may result in denial of entry.These travel restrictions have been added to other current measures, such as the requirements to complete a Public Health Passenger Locator Form (PLF), a prior negative Covid-19 test, and quarantine/isolation/testing in Belgium.

Details:

Back to Top

New Publications and Items of Interest

Webinar on H-1B electronic registration process. The Office of the Citizenship and Immigration Services Ombudsman invites stakeholders to a webinar on the H-1B electronic registration process for attorneys and representatives on Thursday, March 4, 2021, from 2 to 3:30 pm ET. The webinar will include a discussion with USCIS subject matter experts. https://www.dhs.gov/event/cis-ombudsmans-webinar-series-overview-h-1b-electronic-registration-process-attorneys-and  DOL virtual agricultural seminar. The Department of Labor’s Wage and Hour Division will hold a two-day virtual seminar for agricultural industry employers and other stakeholders on March 3-4, 2021. The free training event will provide information and guidance on the regulations pertaining to agricultural employment, including a panel discussion and workshops. Space is limited. https://www.dol.gov/newsroom/releases/whd/whd20210222 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:

Back to Top

ABIL Member / Firm News

Chin & Curtis LLP, based in Boston, Massachusetts, became a partner firm with Wolfsdorf Rosenthal LLP, based in California, effective January 1, 2021. Wolfsdorf Rosenthal said in a press release that the partnership “brings together Chin & Curtis’ high-touch, creative, and specialized business immigration solutions with WR’s technology-focused approach to providing strategic, detail-oriented, client-centered services. Chin & Curtis will retain its brand [and] operational autonomy, and there will be no staffing changes.” https://wolfsdorf.com/news_posts/leading-boston-immigration-law-firm-chin-curtis-llp-joins-wr-immigration/

Klasko Immigration Law Partners, LLP, has released a new podcast in the “Statutes of Liberty” series: “What Happens When a U.S. Green Card Holder Gets Stuck Abroad.”

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by Law360 in “State Dept. Updates COVID-19 Travel Exceptions for Europe.” He said, “No one could have imagined a supposedly pro-immigration administration making legal immigration of parents, employees and business investors more difficult, using COVID-19 as an excuse, when alternative methods exist to ensure both the safety of U.S. citizens and protections against new strains, such as with testing and quarantine. It is a certainty that the Biden administration will have to explain to a federal court judge its legal basis for not issuing visas because of this modified proclamation. Every time in the past they have tried to justify this exact action, they have failed. They will fail again.” https://www.law360.com/publicpolicy/articles/1361015/state-dept-updates-covid-19-travel-exceptions-for-europe

Mr. Kuck was interviewed by Mundo Hispánico on immigration reform and its costs. An English translation of an article summarizing the interview was published by The Canadian at https://thecanadian.news/2021/02/19/lawyer-talks-about-immigration-reform-and-its-prices/.

Mr. Kuck was quoted by Law360 in “Lottery Winners, DOJ Trade Shots in Visa-Expiration Fight.” He emphasized the urgency of getting relief from the court for diversity visa lottery winners who have been unable to enter the United States due to COVID-19 restrictions and are at risk of visa expiration. He told the judge that efforts to reach a resolution with the administration to protect those with visas set to expire in March have been unsuccessful, so his team planned to file a motion for expedited injunctive relief. “There’s probably 300 or 400 people who will lose their visas within the next week,” Kuck said. “Most importantly, this is not something the government was just presented with. That is not accurate. We actually had this conversation two weeks ago … when the administration publicly said it’s considering whether to lift the bans. The reality is it’s now on the court to make this happen. Everybody is going to lose their visas while they consider this,” he said. https://www.law360.com/articles/1354368/lottery-winners-doj-trade-shots-in-visa-expiration-fight

Mr. Kuck was quoted by Axios in “Diversity Visa Winners Losing Chance to Immigrate.” Referring to coronavirus-related restrictions that are keeping out diversity visa lottery winners, Mr. Kuck said, “President Biden should immediately renounce this illegal usurpation of congressional power and restore the status quo by declaring those bans void.” He said at least 6,500 issued visas are at risk of expiring before the ban instituted by former President Trump ends in March, and that at least 1,000 have already expired. “We feel confident we will shortly have a victory in one of these courts before March,” he said. https://www.axios.com/diversity-green-card-visa-lottery-d60cd44d-758f-4339-9ffc-d71d4690e201.html

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) co-authored several new blog postings: “President Biden Must Reject Trump-Era H-1B Lottery Rule and Work Visa Travel Ban,” http://blog.cyrusmehta.com/2021/03/president-biden-must-reject-trump-era-h-1b-lottery-rule-and-work-visa-travel-ban.html, and “Overcoming a Covid Travel Ban Through the National Interest Exception,” http://blog.cyrusmehta.com/2021/02/overcoming-a-covid-travel-ban-through-the-national-interest-exception.html.

Mr. Mehta has authored a new blog posting: “State Department Exempts Certain Travelers From Restrictions: Is There a Better Way So That the Least Number Get Impacted?”

Mr. Mehta was quoted by the Times of India in “Wait Time in the Green Card Queue for Some is 150 Years!” He noted that the U.S. Citizenship Act of 2021 eliminates country caps for employment-based immigrants, but he pointed out that the big question is whether the bill will be passed by a closely divided Senate. https://timesofindia.indiatimes.com/nri/us-canada-news/wait-time-in-the-green-card-queue-for-some-is-150-years/articleshow/81245570.cms

Mr. Mehta was quoted by the Times of India in “The Wide Sweeping Reforms in the U.S. Citizenship Act Decoded.” He said, “President Joe Biden’s U.S. Citizenship Act is sweeping in its humanity and views immigrants as an asset to America rather than as threats either to security or American workers. It starts by abolishing all references to the term ‘alien’ and instead replaces it with ‘noncitizen.’ ” https://timesofindia.indiatimes.com/world/us/the-wide-sweeping-reforms-in-the-us-citizenship-act-decoded/articleshow/81110569.cms

Mr. Mehta was quoted by the Times of India in “U.S. Immigration Bill to Help Clear Job-Based Green Card Backlog.” He said, “The bill is not perfect, though, and does little to accommodate the demand for scarce H-1B visas each year. Nor does it create a start-up visa for entrepreneurs. One provision authorizes the prioritization of distribution of scarce H-1B visas based on wages offered by their employers and also authorizes similar prioritization based on wages for other nonimmigrant worker categories. However, he added, “Even if the H-1B visa is not reformed, hopefully the ability to get a green card more quickly under the new law may compensate for the imperfect H-1B visa program that may remain in place.” Referring to some provisions in the bill that the article calls “ingenious,” Mr. Mehta said, “The bill authorizes the extension of nonimmigrant stays for certain categories of visa holders. For instance, an F-1 student in practical training who is sponsored for a green card can remain in F-1 status” and “get a green card directly.” https://timesofindia.indiatimes.com/world/us/us-immigration-bill-to-help-clear-job-based-green-card-backlog/articleshow/81114101.cms

Mr. Mehta was quoted by the Times of India in “Immigration Bill Aims to Keep and Unite Families, It Gives a Boost to the ‘V’ Visa.” He said, “The immigration bill increases the per-country limit from 7% to 20%. In addition, spouses and minor children of green card holders will not be subject to the quotas. Under current law, only spouses and minor children of U.S. citizens are exempt from being included in the quota. Further, the unused family visas from fiscal 2025 1992 through 2020 will be added back. These measures will reduce wait times, including for ‘V’ visa applicants.” https://timesofindia.indiatimes.com/world/us/immigration-bill-aims-to-keep-and-unite-families-it-gives-a-boost-to-the-v-visa/articleshow/81113335.cms

Mr. Mehta was quoted by Forbes in “New Bill Has Many Good But Two Bad Measures for Employment Immigrants.” The article notes that people who reach their 6-year limit in H-1B status while waiting in the immigration backlog can have their H-1B status extended while they remain in the United States. The new Biden administration immigration reform bill expands the provision to be used by more individuals in H-1B status, and also F-1 students, L-1 intracompany transferees and O-1 (individuals with extraordinary ability or achievement) visa holders, the article states. Mr. Mehta said he believes that provision holds the potential for an international student to bypass H-1B status and go straight to a green card, if an employer sponsored him or her and the measure became law. https://www.forbes.com/sites/stuartanderson/2021/02/19/new-bill-has-many-good-but-two-bad-measures-for-employment-immigrants/?sh=4bec5be35af9

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners, PLLC, has authored a new blog posting: “To Amend, or Not to Amend: That is the Question for Visas Not Associated With a Labor Condition Application.” http://blog.cyrusmehta.com/2021/02/to-amend-or-not-to-amend-that-is-the-question-for-visas-not-associated-with-a-labor-condition-application.html

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) co-authored a new blog posting: “Hey, Immigration Lawyer: Get Me a Coronavirus Passport.” https://www.bigimmigrationlawblog.com/2021/02/hey-immigration-lawyer-get-me-a-coronavirus-passport/

Mr. Paparelli authored a new blog posting: “Inclusive Immigration: USCIS Nixes “Alien” Terminology But Much More Must Be Done.” https://www.bigimmigrationlawblog.com/2021/02/inclusive-immigration-uscis-nixes-alien-terminology-but-much-more-must-be-done/

Greg Siskind, of Siskind Susser, P.C., was featured in “Practicing With Twitter: An Immigration Lawyer’s Social Media Journey,” published by the American Bar Association’s Law Practice Magazine. The article discusses Mr. Siskind’s lessons for attorneys looking to use social media as a marketing strategy. https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2021/ma21/gaffney/ (also available at https://dashboard.mazsystems.com/webreader/71975?page=46)

Mr. Siskind posted a summary of the U.S. Citizenship Act.

Elissa Taub and Ari Sauer are now partners in the firm Siskind Susser, P.C. According to Lynn Susser (bio: https://www.abil.com/lawyers/lawyers-susser.cfm?c=US), “Elissa has managed and expanded our healthcare practice for many years and Ari is the ‘finder of answers for all things complex.’ We are looking forward to their long-term contributions to the firm as it continues to grow and change.”

William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) was quoted by Forbes in “New Bill Has Many Good But Two Bad Measures for Employment Immigrants.” Mr. Stock said that one section of the new Biden administration immigration reform bill “would allow a future president who did not believe in immigration to direct the Department of Homeland Security and Department of Labor to bar employment-based immigration in large parts of the economy. It would allow those agencies to ban immigration based on broad unemployment trends unrelated to labor market shortages in specific industries or for particular skill sets. For the past four years, we have seen that delegations of authority meant to allow for responses to emergencies, like the travel ban authority, can be misused to bar immigration broadly unless the statute provides strict guidelines as to how that authority should be exercised.” He also said, “The primary reason the new [H-1B] lottery rule is problematic is that it contradicts the current statutory directive for selecting H-1Bs by order of filing. Section 3407 of the bill would provide a valid statutory basis for selecting H-1Bs by wage level, advantaging larger employers and employers in cities with higher average salaries.” https://www.forbes.com/sites/stuartanderson/2021/02/19/new-bill-has-many-good-but-two-bad-measures-for-employment-immigrants/?sh=4bec5be35af9

Wolfsdorf Rosenthal LLP has published several new blog postings: “DOL Announces 2021 Adverse Effect Wage Rats for Non-Range Occupations,” “H-2B Cap Reached for Second Half of FY 2021,” “FY 2021 H-1B Cap-Subject Nonselection Notices Issued,” “New Asylum Process at Southern Border To Be Phased In Gradually,” “President Biden Reinstates DED for Liberians,” “State Dept. Announces National Interest Exceptions for Certain Travelers & Students,” Alejandro Mayorkas Confirmed to Lead Department of Homeland Security,” “DOL Proposes to Delay Effective Date of H-1B/PERM Wage Rule Until May,” “USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions,” “Good News for H-1B Applicants as Biden Administration Delays Wage-Based Selection Process for H-1Bs,” “Biometrics: Questions and Answers,” and “President Biden Signs Executive Orders Setting a Welcoming Tone for Immigrants.” https://wolfsdorf.com/blog/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by National Public Radio in “Supreme Court Makes It Harder for Undocumented Immigrants to Fight Deportation.” He said the court’s decision “increases the burden of proof on immigrants in deportation proceedings.” https://www.npr.org/2021/03/04/973658292/supreme-court-makes-it-harder-for-undocumented-immigrants-to-fight-deportation

Mr. Yale-Loehr was quoted by Bloomberg Law Daily Labor Report in “U.S. Lawmakers Exploring Regional Visa Programs to Boost Economy.” The U.S. Citizenship Act’s regional economic development visa proposal echoes a similar initiative that was enacted as part of immigration law in 1990—the Labor Market Information program, which directed the Department of Labor to identify industries with a shortage of workers in the United States and industries with a surplus, he said. The plan was to make it easier to select immigrants in the shortage occupations and harder in the surplus occupations. “The proposed regulations were roundly criticized and the whole program died. In concept, this sounds great, but the devil is always in the details,” he said. https://news.bloomberglaw.com/daily-labor-report/u-s-lawmakers-exploring-regional-visa-programs-to-boost-economy

Mr. Yale-Loehr was quoted by Law & Crime in “Despite Biden Admin’s Claims, Southern District of Texas Ruling Does Not Require ICE to Deport.” He said, “Today’s court order does not require ICE to deport everyone who has a final deportation order. ICE still has discretion in deciding who to deport.” https://lawandcrime.com/immigration/despite-biden-admins-claims-southern-district-of-texas-ruling-does-not-require-ice-to-deport/

Mr. Yale-Loehr moderated a webinar, “What to Expect on Immigration from the Biden Administration”:

Mr. Yale-Loehr was quoted by Bloomberg Law in “Lawmakers Revisit Changes to H-1B Lottery in Immigration Plan.” He said that any plan to implement a wage-based H-1B system from Biden administration agency heads is unlikely to “be identical to the Trump H-1B wage rule, but it is similar in concept.” Moreover, “this would only authorize DHS and DOL to consider a wage-based system; it doesn’t require it.” https://news.bloomberglaw.com/daily-labor-report/lawmakers-revisit-changes-to-h-1b-lottery-in-immigration-plan

Mr. Yale-Loehr was quoted by the Philadelphia Inquirer in “ICE ‘Deep State’ is Blocking Biden’s Quest for Justice for Refugees.” Mr. Yale-Loehr said that President Biden faces a long road in undoing former immigration policies. “First, former President Trump emboldened ICE agents to arrest anyone they suspected of being here illegally, even if the person merely overstayed their visa. ICE officials will not want to return to the pre-Trump era, where they were supposed to prioritize deporting immigrants who had serious criminal convictions. That is harder work.” In sum, he said, “changing the ICE bureaucracy is like steering an ocean liner. It takes time to change course. And it is harder when the crew may refuse to comply.” https://www.inquirer.com/opinion/biden-deportations-ice-haiti-cameroon-mexico-20210211.html

Mr. Yale-Loehr was quoted by Mediapart France in “États-Unis: Biden promet une grande réforme de l’immigration” (“United States: Biden promises major immigration reform”). Mr. Yale-Loehr said that two essential questions relate to the content and “timing” of reform, considering that the midterm elections in 2022 could reshuffle the cards in the Senate. For the left, the possibility exists of fragmenting any reform project into first attempting to strengthen measures in Congress that are more “modest” and consensual like the DACA program, he said. Congress is not the only obstacle in the path of the Democrats. A federal judge in Texas, appointed by former President Trump, has effectively temporarily blocked a decision by President Biden to suspend deportations for 100 days, he noted (subscription)

Mr. Yale-Loehr was quoted by the Associated Press in “ICE Nearly Released Sex Abuse Convicts Despite Biden Memo.” He said a conviction for sexual abuse of a minor normally would qualify as an aggravated felony, and that “such individuals remain immigration enforcement priorities.” https://apnews.com/article/joe-biden-us-news-immigration-crime-texas-09f40966250e15b9d54942ddb267df7b

Back to Top

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

Back to Top