In this issue:

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, following new travel bans imposed on several countries, the Biden administration announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021.

2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions – The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The bill includes several immigration measures.

3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers – After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling.

4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations – The Department of Labor is proposing revisions to the methodology used to determine the AEWRs for non-range agricultural occupations in the H-2A temporary visa program.

5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. Other countries imposed similar bans.

6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit – USCIS expects to issue refunds by March 22, 2022.

7. USCIS Incorporates General Adjudications Guidance Into Policy Manual – In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next – The House of Representatives passed the “Build Back Better” budget reconciliation bill. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and raising some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, $2.8 billion for the Department of Homeland Security to reduce processing backlogs, and recapturing unused green cards that would otherwise expire each year.

9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations – On November 19, 2021, USCIS selected additional registrations to reach the FY 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees – USCIS automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1,

11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December – The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories are “Current” for December.

12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment – U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications.

13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses – Following recent litigation, U.S. Citizenship and Immigration Services announced that certain H-4, E, or L dependent spouses will qualify for an automatic work permit extension if certain conditions are met.

14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States – The Department of Homeland Security will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021.

16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic – The Executive Office for Immigration Review announced that its website will now be “the principal method of communication with the public” regarding COVID-19 pandemic-related notices.

17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022 – In 2022, in addition to the new Illinois facility, USCIS plans more filing location changes.

18. ABIL Global: Canada – This article discusses recent developments in COVID-19-related border measures.

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 – December 2021

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant

Last week, in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who had been in any of eight countries in southern Africa for the prior 14 days would be barred from entry into the United States. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. Since then, the new variant has spread to at least 23 countries, including the United States, and more are likely, according to the World Health Organization. The Biden administration subsequently announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021. Fines for noncompliance with the mask requirement range from $500 for a first offense to $3,000 for repeat violations.

For the testing requirement, the CDC rules state that those who recently recovered from COVID-19 may instead travel with documentation of recovery (i.e., a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that the passenger was cleared to travel).

Regarding the one-day requirement for testing, the CDC explained:

The 1-day period is 1 day before the flight’s departure. The Order uses a 1-day time frame instead of 24 hours to provide more flexibility to the air passenger and aircraft operator. By using a 1-day window, test acceptability does not depend on the time of the flight or the time of day that the test sample was taken.

For example, if your flight is at 1 pm on a Friday, you could board with a negative test that was taken any time on the prior Thursday.

The Biden administration indicated that more countries could be added to the restricted list if warranted. As this is a rapidly developing, fluid situation, travelers should check the latest updates before departure.

Details:

• “New U.S. Travel Rules: What You Need to Know About the Changes Prompted by Omicron,” CNN, Dec. 3, 2021, https://www.cnn.com/travel/article/new-us-travel-rules-omicron-what-to-know/index.html
• “U.S. Tightens Travel Testing Requirements, Mask Mandates as Part of Broader Plan to Fight Covid,” CNBC, Dec. 2, 2021, https://www.cnbc.com/2021/12/02/omicron-covid-variant-us-tightens-travel-testing-requirements-mask-mandates.html
• “Requirement for Proof of Negative COVID-19 Test or Documentation of Recovery From COVID-19,” CDC, Dec. 2, 2021, https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html
• “U.S. Imposes Travel Ban From Eight African Countries Over Omicron Variant,” Nov. 27, 2021, https://www.reuters.com/world/us/us-impose-travel-curbs-eight-southern-african-countries-over-new-covid-19-2021-11-26/
• “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019,” White House, Nov. 26, 2021,

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2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions

The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The House of Representatives passed the bill by a vote of 221-212, and the Senate passed it by a vote of 69-28. President Biden signed it into law on December 3.

The immigration provisions include:

• $7 billion to support Operation Allies Welcome, including resettlement of Afghans who aided U.S. military operations in Afghanistan
• $1.6 billion for services for unaccompanied minors crossing the U.S.-Mexico border who are under the care of the Department of Health and Human Services

Details:

• Text of law to be posted at https://www.congress.gov/bill/117th-congress/house-bill/6119/text
• “BGOV Bill Summary: H.R. 6119, Stopgap Funding and Refugee Aid,” Bloomberg Government, Dec. 2, 2021.
• “Avoiding Shutdown, Congress Approves Bill to Fund Government Through Feb. 18,” NBC News, Dec. 2, 2021, https://www.nbcnews.com/politics/congress/house-democrats-announce-plan-fund-government-prevent-shutdown-n1285214
• “Senate Passes Stopgap Funding Bill, Avoiding Shutdown,” Associated Press News, Dec. 3, 2021, https://apnews.com/article/coronavirus-pandemic-business-health-congress-aa30e5922cb6650e9235b0a66813b2f4

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3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers

After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling in August 2021. President Biden previously called the policy “inhumane” because it forced tens of thousands of people to wait for months in conditions that included violent crimes perpetrated against them, among other risks.

Under the reinstated policy, at Mexico’s request, COVID-19 vaccinations will be provided, exemptions will be possible for reasons including physical and mental health issues, and the time spent in the program will be limited to six months per applicant. The Department of Homeland Security also said that the U.S. government is committed to reimplementing the program “in a way that enhances protection for individuals enrolled in the program.” Among the measures being taken are the provision of access to shelters in Mexico and “safe transit” to and from ports of entry to the shelters, to enable individuals to attend court hearings. Additionally, DHS said, the government of Mexico “has committed to ensuring that individuals enrolled in [the program] are provided temporary legal status in Mexico and will, as a result, be able to work and access services in Mexico.” DHS also said that family units would not be separated for purposes of enrollment in the program. DHS said it would observe “non-refoulement” principles and that no individual who demonstrates a “reasonable possibility of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” or a “reasonable possibility of torture in Mexico” will be returned to Mexico involuntarily.

According to reports, the policy is expected to be re-implemented on December 6, 2021.

Details:

• “U.S. and Mexico to Restart Trump-Era ‘Remain in Mexico’ Policy,” BBC News, Dec. 2, 2021, https://www.bbc.com/news/world-us-canada-59509854
• DHS guidance, Dec. 2, 2021, https://www.dhs.gov/sites/default/files/publications/21_1202_plcy_mpp-policy-guidance.pdf

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4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) is proposing revisions to the methodology used to determine the Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations in the H-2A temporary visa program. DOL said the proposed methodology “will strike a reasonable balance between the statute’s competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of U.S. workers similarly employed.”

DOL proposes to determine AEWRs using wage data reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS) and DOL’s Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) survey. For the six occupations comprising the field and livestock worker (combined) category within the FLS, which DOL said constitute the majority of H-2A job opportunities, the agency proposes to set a single AEWR using the annual average hourly wage for field and livestock workers (combined) for the state or region, as determined by the FLS. For all other job opportunities, and in circumstances where the FLS does not report wage data for the field and livestock worker occupations, DOL proposes to use OEWS wage data to set the AEWR at the statewide annual average hourly wage for the occupational classification, or the national annual average hourly wage if statewide data is unavailable.

Details:

• Announcement, Office of Foreign Labor Certification, Dec. 1, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Proposed rule, Employment and Training Administration, DOL, Dec. 1, 2021, https://www.federalregister.gov/documents/2021/12/01/2021-25803/adverse-effect-wage-rate-methodology-for-the-temporary-employment-of-h-2a-nonimmigrants-in-non-range

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5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant

In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. He said this was in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), which appears to be rapidly spreading in South Africa and present in other countries.

The Biden administration indicated that more countries could be added to the restricted list if warranted. Several other countries also issued similar travel bans and restrictions, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. The variant, which is being studied to determine its contagiousness, severity, and ability to circumvent immunity, has been detected in several countries in addition to Africa, including Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany.

Meanwhile, as of November 27, 2021, the Department of State issued a Level 4 Travel Health Notice for South Africa: “Do not travel to South Africa due to COVID-19.”

Details:

• “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019,” White House, Nov. 26, 2021,
• “U.S. Imposes Travel Ban From Eight African Countries Over Omicron Variant,” Nov. 27, 2021, https://www.reuters.com/world/us/us-impose-travel-curbs-eight-southern-african-countries-over-new-covid-19-2021-11-26/
• “U.S. Announces Travel Restrictions Over New Covid-19 Variant,” CNN, Nov. 27, 2021, https://www.cnn.com/world/live-news/new-covid-variant-south-africa-11-27-21/index.html
• “Travel Doors Slam Shut as New Covid Variant Triggers Alarm, Stranding Hundreds of Passengers,” CNN, Nov. 27, 2021, https://www.cnn.com/travel/article/new-covid-variant-travel/index.html
• “Omicron Variant Detected From Britain to Hong Kong as Countries Race to Impose Controls,” Washington Post, Nov. 27, 2021, https://www.washingtonpost.com/world/covid-variant-fallout-omnicron/2021/11/27/8c6e0548-4f02-11ec-a7b8-9ed28bf23929_story.html
• South Africa Travel Advisory, Dept. of State, Nov. 27, 2021, https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/south-africa-travel-advisory.html

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6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit

U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2021, that it mistakenly rejected certain Forms I-765, Application for Employment Authorization, from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14, 2021, through September 29, 2021. USCIS said it also mistakenly accepted fees where certain petitioners for U nonimmigrant status unnecessarily submitted fees with their I-765 applications.

USCIS expects to issue refunds by March 22, 2022. Individuals who filed an initial bona-fide-determination-related Form I-765 under the (c)(14) eligibility category from June 14 through September 29, 2021, whose Form I-765 was rejected for lack of fee, and who have not refiled, may resubmit Form I-765 without a fee, USCIS said.

Details:

• USCIS alert, Nov. 22, 2021, https://www.uscis.gov/newsroom/alerts/certain-petitioners-for-u-nonimmigrant-status-may-receive-a-refund-for-applications-for-employment

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7. USCIS Incorporates General Adjudications Guidance Into Policy Manual

U.S. Citizenship and Immigration Services (USCIS) announced on November 23, 2021, that it is incorporating existing guidance from the Adjudicator’s Field Manual (AFM) into the USCIS Policy Manual. In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

Among other things, USCIS said the update “explains how officers should handle cases involving unreliable evidence, including consulting the Department of State’s Reciprocity Table, providing information on voluntary DNA collection options, and referring certain cases for in-person interviews. The update also clarifies “that when a petitioner, beneficiary, or authorized representative requests a copy of a signed sworn statement taken during an interview, officers provide a copy of the statement to the affiant (the person making the statement) at the conclusion of the interview where the statement was taken.”

Details:

• USCIS alert, Nov. 23, 2021, https://www.uscis.gov/newsroom/alerts/uscis-incorporates-general-adjudications-guidance-into-the-policy-manual
• USCIS Policy Manual, https://www.uscis.gov/policy-manual

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8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next

The House of Representatives passed the $1.75 trillion “Build Back Better Act” budget reconciliation bill, 220-213, on November 19, 2021. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and increases in some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, and $2.8 billion for the Department of Homeland Security to reduce processing backlogs. The House bill would also recapture more than 200,000 unused green cards that would otherwise expire each year.

In addition, it would provide for diversity visas for those refused a visa, prevented from seeking admission, or denied admission to the United States solely because of certain executive orders and limitations on visa processing, visa issuance, travel and other effects associated with the COVID-19 pandemic.

The Senate will take up the bill next, likely in December. It remains to be seen whether the bill will become law in its current version or will be revised or defeated. Among various factors, Senate Parliamentarian Elizabeth MacDonough earlier rejected several previous immigration-related provisions in the draft bill, such as a path to citizenship for undocumented immigrants, but observers believe some provisions may survive her scrutiny, such as one that would recover roughly 400,000 currently unused green cards.

Below are selected highlights of the House-passed version of the “Build Back Better Act”:

Green Card Provisions for Immigrants Waiting in Backlogs

The House bill’s provisions would allow an employee waiting for more than two years in the backlog of approved legal immigration applications to pay a supplemental fee of $5,000 and file for adjustment of status without waiting for a priority date to become available. Those with approved green card applications awaiting visa availability could pay $1,500 to essentially jump the queue and file for adjustment.

Work Permits

As noted above, the House bill would allow about seven million undocumented immigrants living in the United States since before 2011 to stay in the United States through parole, and to be eligible for work permits valid for five years (renewable once), authorization to travel, and driver’s licenses if they file an application and pay a fee. They could also apply for health insurance under the Affordable Care Act. They would need to pass background checks.

Fee Increases

Examples of supplemental immigration-related fees that would be imposed by the House bill, if passed, include:

• $100 for certain family-sponsored immigrant visa petitions (Forms I-130)
• $800 for each employment-based immigrant visa petition (Forms I-140)
• $15,000 for each employment-based fifth preference petition (Forms I-526)

Details:

• “Build Back Better Act” (most of the immigration-related provisions are on pp. 899–914), H.R. 5376,
• “President Biden Announces the Build Back Better Framework,” White House, Oct. 28, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/28/president-biden-announces-the-build-back-better-framework/
• House Democrats Just Passed Build Back Better—Here’s What’s Included,” CNBC, Nov. 19, 2021, https://www.cnbc.com/2021/11/19/house-dems-just-passed-build-back-betterheres-whats-included.html
• “How the House Spending Bill Sets a Path to Legalization for Undocumented Immigrants,” Washington Post, Nov. 19, 2021, https://www.washingtonpost.com/us-policy/2021/11/19/immigration-biden-spending-bill/ (subscription)
• “What Will the Senate Do With the Build Back Better Bill?,” Time, Nov. 19, 2021, https://time.com/6121614/build-back-better-spending-bill-senate/

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9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations

U.S. Citizenship and Immigration Services (USCIS) announced that on November 19, 2021, it selected additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

USCIS said the petition filing period will begin November 22, 2021, and close on February 23, 2022. Those with selected registrations will receive a selection notice in their myUSCIS accounts with details about when and where to file.

Details:

• USCIS alert, Nov. 19, 2021, https://www.uscis.gov/newsroom/alerts/uscis-conducts-third-random-selection-from-previously-submitted-fy-2022-h-1b-cap-registrations

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10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees

Effective November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1, E-2, and E-3 nonimmigrants. USCIS also automatically extended work authorization for certain H-4 nonimmigrants who are dependent spouses of H-1B nonimmigrants.

Such individuals may receive automatic extensions of their employment authorization documents.

Details:

• “New Requirements Affecting Form I-9 Completion for Certain Employees,” USCIS, Nov. 17, 2021, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/new-requirements-affecting-form-i-9-completion-for-certain-employees
• “Automatic Extensions Based on a Timely Filed Application to Renew Employment Authorization and/or Employment Authorization Document,” Handbook for Employers, Nov. 16, 2021, USCIS,

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11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December

The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories (i.e., “direct” EB-5 investors) are “Current” for December. Both the filing date and final action date are “Current,” meaning that in December, qualified Chinese EB-5 applicants in the visa phase can get green cards regardless of their priority date.

If China-mainland-born number use were to increase at a level that could potentially jeopardize visa availability under the overall FY 2022 employment-based fifth preference annual limit, it would then be necessary to once again impose a final action date, the bulletin says.

The bulletin also notes that:

• Final action dates for the EB-5 (I5 and R5) regional center categories are “Unavailable” for December, but if legislative action extends this category for December, the final action dates would immediately become “Current” for December for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
• The non-minister special immigrant program expires on December 3, 2021. No SR green cards may be issued overseas or final action taken on related adjustment of status cases after that date. Visas issued before this date will have a validity date of December 2, 2021, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight, December 2, 2021. The final action date for this category is “Current” for December for all countries except for El Salvador, Guatemala, Honduras, and Mexico, which are subject to specific final action dates for December. If there is no legislative action extending this category for fiscal year 2022, the final action date would immediately become “Unavailable” for December for all countries effective December 3, 2021.

Details:

• Visa Bulletin for December 2021, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-december-2021.html
• Adjustment of Status Filing Charts From the Visa Bulletin (includes information on dates for filing and final action dates),

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12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment

The Department of Homeland Security issued a 60-day notice and request for comments on revisions to the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program travelers. Specifically, U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications. ESTA applicants will be prompted to take a selfie or “live” photo “to conduct a ‘liveness’ test to determine if the ESTA application is interfacing with a physically present human being and not an inanimate object, or if it is a photo of someone other than the lawful passport holder.” Respondents will be able to scan their passport biographic page to submit biographic information, including passport photo.

CBP will also implement the ESTA mobile application for Visa Waiver Program travelers. The mobile app will collect biometric data.

Details:

• “Arrival and Departure Record, Nonimmigrant Visa Waiver Arrival/Departure, Electronic System for Travel Authorization (ESTA),” 60-day notice and request for comments; revision, 86 Fed. Reg. 64508 (Nov. 18, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-18/pdf/2021-25147.pdf
• ESTA application, https://esta.cbp.dhs.gov/

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13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses

Following recent litigation, U.S. Citizenship and Immigration Services (USCIS) announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met. Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes, USCIS said.

In addition, USCIS will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status, with a few exceptions.

USCIS is also rescinding the 2002 Immigration and Naturalization Service memorandum, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition.”

USCIS’ actions followed a settlement in Shergill v. Mayorkas. The settlement provided structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for work authorization applications. Also as a result of this settlement, as noted above, USCIS will now recognize that L-2 spouses are employment authorized incident to L-2 status. This means that spouses of transferred executives and managers no longer need to apply for work permits before working or starting a business in the United States.

Details:

• “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses,” USCIS Policy Alert, Nov. 12, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf
• Settlement agreement, Nov. 10, 2021,

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14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

The Secretary of Homeland Security, with the concurrence of the secretary of state, has decided to:

• Add Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for the H-2A program), Haiti, Mauritius, and Saint Lucia to the list of countries eligible to participate in the H-2A and H-2B programs; and
• No longer designate Moldova as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program. Moldova’s eligibility for the H-2A program remains effective until January 18, 2022.

Except for Moldova, the designations took effect November 10, 2021, and will remain in effect for one year, until November 10, 2022.

U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions for nationals of countries not on the list on a case-by-case basis if doing so is determined to be in the interest of the United States.

Details:

• USCIS alert (including the full list of countries), Nov. 9, 2021, https://www.uscis.gov/newsroom/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs
• “Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs,” 86 Fed. Reg. 62559 (Nov. 10, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf

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15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States

The Department of Homeland Security (DHS) announced on November 8, 2021, that it will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021. DHS said these actions “will help facilitate their resettlement in the U.S. by streamlining the processing of requests for work authorization, Green Cards, and associated services.”

DHS is the lead federal agency coordinating Operation Allies Welcome, the ongoing all-of-government effort to resettle Afghans who fled their country following the Taliban takeover, including those who worked on behalf of the United States. Approximately 70,000 Afghans have arrived in the United States as part of Operation Allies Welcome, DHS said. Following the “biggest airlift in U.S. history,” DHS paroled many Afghan nationals, on a case-by-case basis, into the United States for urgent humanitarian reasons. DHS said that parolees may apply for work authorization using Form I-765, Application for Employment Authorization, on the basis of their parole. Afghan nationals can also apply for immigration benefits such as Afghan special immigrant status, lawful permanent residence, and asylum, the agency noted.

Details:

• DHS news release, Nov. 8, 2021, https://www.uscis.gov/newsroom/news-releases/dhs-announces-fee-exemptions-streamlined-processing-for-afghan-nationals-as-they-resettle-in-the-us
• Information for Afghans, USCIS, https://www.uscis.gov/humanitarian/information-for-afghans

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16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced that it is discontinuing issuance of formal documents reporting COVID-19 pandemic-related adjustments and protocols, and that its website will now be “the principal method of communication with the public” regarding such updates.

Details:

• EOIR memorandum, Nov. 8, 2021, https://www.justice.gov/eoir/book/file/1447111/download
• EOIR website, https://www.justice.gov/eoir

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17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022

U.S. Citizenship and Immigration Services (USCIS) plans to open a new lockbox facility in Elgin, Illinois, next year. The agency also has consolidated filing locations for certain employment-based forms to a single lockbox location. In 2022, USCIS plans more filing location changes, including moving the lockbox facility in Arizona from Phoenix to Tempe.

Details:

• USCIS alert, Nov. 12, 2021, https://www.uscis.gov/newsroom/alerts/uscis-opening-a-new-lockbox-facility

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18. ABIL Global: Canada

This article discusses recent developments in COVID-19-related border measures.

The government of Canada announced on November 26, 2021, that as a precautionary measure due to concerns about the new “Omicron” variant of concern, until January 31, 2022, Canada is implementing enhanced border measures for certain travelers.

Also, on November 19, 2021, the government of Canada announced upcoming adjustments to Canada’s border measures. In a press release, the government of Canada indicated that it will continue to prioritize the health and safety of Canadians. As vaccination levels, case counts, and hospitalization rates evolve, Canada will continue to consider further targeted measures at the borders—and when to lift or adjust them—to keep Canadians safe. As the pandemic situation remains fluid, travelers should check for the latest requirements before traveling.

According to the November 19 announcement, as of November 30, 2021, fully vaccinated Canadian travelers will no longer be subject to testing requirements for trips outside of the country for less than 72 hours; the list of accepted vaccines will expand to include Sinopharm, Sinovac, and COVAXIN; and vaccination will be required for travel within and out of Canada.

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada.

Below is a summary of developments:

What is changing now?

As noted above, due to concerns about the new variant, additional restrictions are being imposed on certain travelers. According to the November 26 press release, until January 31, 2022, Canada is implementing enhanced border measures for all travelers who have been in the Southern Africa region—including South Africa, Eswatini, Lesotho, Botswana, Zimbabwe, Mozambique, and Namibia—within the last 14 days before arriving in Canada. Foreign nationals who have traveled in any of these countries within the previous 14 days will not be permitted entry into Canada. They will be directed to be tested and to quarantine while they await their test results.

Canadian citizens, permanent residents, and people with status under the Indian Act, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, who have been in these countries in the previous 14 days will be subject to enhanced testing, screening, and quarantine measures. These individuals will be required to obtain, within 72 hours of departure, a valid negative COVID-19 molecular test in a third country before continuing their journey to Canada. Upon arrival to Canada, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, they will subject to immediate arrival testing. All travelers will also be required to complete a test on day 8 after arrival and quarantine for 14 days. They must also have a suitable quarantine plan.

Short Trips

Effective November 30, 2021, full vaccinated individuals with right of entry to Canada who depart and re-enter the country within 72 hours of leaving Canada do not need to present a pre-entry molecular test. This exemption is only for trips originating in Canada taken by fully vaccinated Canadian citizens, permanent residents, or individuals registered under the Indian Act, who depart and re-enter by land or by air and can demonstrate that they have been away from Canada for less than 72 hours. This exemption extends to accompanying children under 12 and individuals with medical contraindications to vaccination.

For fully vaccinated travelers with right of entry into Canada who are traveling by air, the 72-hour period runs from the initially scheduled departure time for their flight leaving Canada to the scheduled departure time for their return flight to Canada. Travelers are responsible for maintaining proof of the 72-hour period to show airline/rail companies and border officials as required (e.g., boarding pass, travel itinerary).

Vaccination Status

Previously, to be considered fully vaccinated, travelers must have received two doses or a combination of the Pfizer, Moderna, or AstraZeneca/COVISHIELD vaccines, or a single dose of the Janssen (Johnson & Johnson) vaccine, at least 14 days before their entry to Canada. As of November 30, 2021, Canada expanded the list of COVID-19 vaccines that travelers can receive to be considered fully vaccinated for the purpose of travel to Canada. The list now includes Sinopharm, Sinovac, and COVAXIN, matching the World Health Organization Emergency Use Listing.

Travelers can receive their vaccines in any country, and must upload their proof of vaccination in English or French into ArriveCAN when traveling to Canada. If the proof of vaccination is not in English or French, travelers must provide a certified translation in English or French.

Travel Within and Out of Canada

Starting November 30, 2021, vaccination is required for travel via air or rail within and out of Canada. A valid COVID-19 molecular test is no longer accepted as an alternative to vaccination unless travelers are eligible for one of the limited exemptions, such as a medical inability to be vaccinated. Travelers should contact their airline or railway company to obtain the necessary form and submit it in accordance with their carrier’s approval process.

While Canadian citizens, permanent residents, and persons registered under the Indian Act can still enter Canada if they are unvaccinated or partially vaccinated, they are not permitted to travel beyond their point of entry within Canada on a connecting flight or by rail. These travelers should plan their return accordingly by selecting a Canadian airport that is closest to their final destination, and expect to be subject to testing and quarantine.

New ArriveCAN Requirements for Essential Travelers

As of November 30, 2021, all exempt essential service providers must identify their vaccination status in ArriveCAN, regardless of whether or not they are allowed to enter as unvaccinated.

If an exempt essential traveler previously created a reusable ArriveCAN receipt, they must either download the latest version of the free ArriveCAN mobile app or sign in to the web version, and re-submit all of their information, including the newly required information on proof of vaccination, to get a new exempt reusable ArriveCAN receipt. Once an exempt traveler creates a new reusable receipt, the receipt can be used for subsequent trips.

What will change on January 15, 2022?

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada. These groups include:

• Individuals traveling to reunite with family (unvaccinated children under 18 years of age will retain exemption if traveling to reunite with an immediate or extended family member who is a Canadian, permanent resident, or person registered under the Indian Act);
• International students who are 18 years old and older;
• Professional and amateur athletes;
• Individuals with a valid work permit, including temporary foreign workers (outside of those in agriculture and food processing); and
• Essential service providers, including truck drivers.

After January 15, 2022, unvaccinated or partially vaccinated foreign nationals will only be allowed to enter Canada if they meet the criteria for limited exceptions, which apply to certain groups such as agricultural and food processing workers, marine crew members, those entering on compassionate grounds, new permanent residents, resettling refugees, and some children under the age of 18. Exempt unvaccinated travelers will continue to be subject to testing, quarantine, and other entry requirements. Non-exempt unvaccinated or partially vaccinated foreign nationals will be prohibited entry into Canada.

What requirements are still in place?

For trips out of the country longer than 72 hours, all travelers eligible to enter Canada must complete the mandatory pre-entry molecular COVID-19 test. Antigen tests are not accepted. Travelers who have already had COVID-19 and recovered can provide proof of a positive COVID-19 molecular test taken at least 14 days and no more than 180 days before the initial scheduled departure time of their aircraft, or their entry into Canada by water or land. If arriving by air, they must provide proof of their test result to the airline before boarding their flight to Canada.

As has been the case since August 9, 2021, fully vaccinated travelers do not need to take a test on arrival unless they are randomly selected to complete a day 1 COVID-19 molecular test. All travelers who are randomly selected for the border testing surveillance program must complete the mandatory arrival test. However, they do not have to quarantine while awaiting the result.

Fully vaccinated travelers must also be asymptomatic, have a paper or digital copy of their vaccination documentation in English or French (or certified translation, along with the original), and provide COVID-19-related information electronically through the ArriveCAN app before arrival in Canada. They must still present a suitable quarantine plan, and must be prepared to quarantine in case it is determined at the border that they do not meet all of the conditions required to be exempt from quarantine. As with all other exempt travelers, they must follow public health measures in place, such as wearing a mask when in public, keeping a copy of their vaccine and test results, and keeping a list of close contacts for 14 days after entry to Canada.

Details:

• “Government of Canada Introduces New Measures to Address COVID-19 Omicron Variant of Concern,” Public Health Agency of Canada, Nov. 26, 2021, https://www.canada.ca/en/public-health/news/2021/11/government-of-canada-introduces-new-measures-to-address-covid-19-omicron-variant-of-concern.html
• “Government of Canada Announces Adjustments to Canada’s Border Measures,” news release, Public Health Agency of Canada, Nov. 19, 2021, https://www.canada.ca/en/public-health/news/2021/11/government-of-canada-announces-adjustments-to-canadas-border-measures.html

ArriveCAN, https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19/arrivecan.html

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New Publications and Items of Interest

Webinar on H-2B filing. The Department of Labor’s Office of Foreign Labor Certification (OFLC) invites stakeholders to a webinar on best practices and helpful tips for preparing the H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices). Topics will include regulatory timeframes and filing requirements for H-2B applications with a start date of need of April 1, 2022, or later; procedures OFLC uses to randomly select H-2B applications for review and processing; recent enhancements to the Foreign Labor Application Gateway (FLAG) system; and helpful hints and reminders to avoid deficiencies during the application process. The webinar will be held Tuesday, December 7, 2021, from 2 to 3 p.m. ET. Announcement (scroll down to November 29, 2021):
https://www.dol.gov/agencies/eta/foreign-labor;
Meeting link: https://usdol.webex.com/webappng/sites/usdol/meeting/download/7aa105bc26df442d8eb30c56b4e0174f?siteurl=usdol&MTID=m799336e30be63f0c7567f2d5bd7ef01a

Information for Afghans. U.S. Citizenship and Immigration Services has released a webpage with links to information for Afghan nationals, including Afghan parolees working in the United States, information for Afghans relocated to the United States, special immigrant visas, asylum, changes of address, finding legal services, humanitarian parole, refugees, family-based immigration petitions, information sheets for Afghan parolees departing safe havens, Afghan parolee vaccination status attestation, and additional information. The information notes that for all Afghan parolees seeking to work, USCIS must approve their Form I-765, Application for Employment Authorization, before they can work legally in the United States. https://www.uscis.gov/humanitarian/information-for-afghans

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

News from Foster LLP:·         Avalyn Langemeier presented “U.S. Immigration: Recap of 2021 and Strategic Planning for 2022,” at the HR Houston November General Meeting on November 18, 2021. She discussed immigration issues in 2021 during the pandemic, including challenges related to travel, remote work, work authorization, government processing delays, and Form I-9 compliance. Based on lessons learned, this session helped the audience identify potential immigration issues affecting their businesses so they can prepare an immigration plan and strategy for 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1560064&group= ·         Brenda Hicks and Cody Wallace will discuss ongoing developments in global immigration laws and procedures on a worldwide scale and the effects they may have on the relocation of employees. The webinar will be held Wednesday, December 1, 2021. Click here to register: https://register.gotowebinar.com/register/916151990262688016 ·         Helene Dang will present “Managing Immigration Status Over the Long Haul Under Pandemic Restrictions” in a webinar with Worldwide ERC on December 2, 2021. She will discuss some immigration-related changes and effects of our collective pandemic experience and considerations for employers and employees to manage and maintain legal immigration work status in the long term. https://www.worldwideerc.org/webinar/managing-immigration-status-over-the-long-haul-under-pandemic-restrictions

Avalyn Langemeier and Liliana Kottwitz of Foster LLP presented a webinar, “Thinking Outside the Box: O-1 and P Visas, TPS and DACA,” on November 10, 2021. The webinar provided human resources professionals an overview of the O-1 visa category for individuals of extraordinary ability and P visas for entertainers and athletes. HR professionals also gained insight into Temporary Protected Status and Deferred Action for Childhood Arrivals for eligible individuals.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) authored “Action Needed in Ga. and Congress on Immigration Relief,” published by the Atlanta Journal-Constitution.

Cyrus Mehta and Kaitlyn Box‘s blog, “The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers,” was praised by LexBlog, which said they “make a convincing case” against recent travel bans, “expertly lay out the numerous flaws and hypocrisies inherent to these types of travel bans and illustrate the ways in which they defy scientific reality.” LexBlog said the blog is “an incredibly well-constructed takedown of these ill-conceived travel bans and I cannot commend Mehta and Box enough for their thoroughness.” LexBlog’s comments are at https://www.lexblog.com/2021/12/03/best-of-law-blogging-omicron-more-omicron-and-e-scooters/. The blog is at .

Mr. Mehta authored a new blog post, “The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged.” http://blog.cyrusmehta.com/2021/11/the-legal-basis-underpinning-the-new-automatic-extension-of-work-authorization-for-h-4-l-2-and-e-2-spouses-and-why-it-must-still-be-challenged.html

Mr. Mehta was quoted by the Economic Times on the 9% drop in H-1B holders in the United States. He said the drop was “clearly attributed to the Covid travel bans and the inability of nonimmigrants to get visas and come to the U.S. under approved H-1B petitions.” He said another way of looking at it is that “many in the U.S. who have been in H-1B status may have adjusted to permanent residence over the past year. Also, many who have pending adjustment applications, and have not yet received the green card, may have decided to remain in the U.S. as pending adjustment applicants with work permits rather than remain in H-1B status. Pending adjustment applicants find it easier to remain without an H-1B and have only a work permit as they can exercise job portability more easily.” https://economictimes.indiatimes.com/nri/migrate/9-drop-in-h-1b-visa-holders-in-the-us-highest-in-a-decade/articleshow/88050668.cms

Mr. Mehta was quoted by India West in “USCIS Reaches Settlement With H-4 Workers, Allowing Automatic Renewal of Employment Authorization for Some.” He tweeted, “USCIS needs to be sued again. H-4s who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date, but most existing EADs end with the current I-94 date.”

Wolfsdorf Rosenthal LLP has published several new blog posts: “What Doees the December 2021 Visa Bulletin Mean for New ‘Direct’ EB-5 Investors?”; “Immigration Update”; “Good News: USCIS Announces Plans to Ease Work Authorization Process for Certain E, L, and H-4 Spouses”; “White Paper: Making Travel Plans? Here’s the Short-Term Outlook”; “Success Story: EB-1A Approved in Just a Few Days!”; and “Direct EB-5 Due Diligence: Buyer Beware (and Immigration Attorneys Be Cautious). https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in two articles:

• “Democrats Get Ready to Deliver Their ‘Plan C’ With a Third Immigration Proposal to a Key Senate Figure,” Nov. 29, 2021. Mr. Yale-Loehr said the social spending budget bill approved by the House of Representatives “includes a series of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States. The bill would also give the Department of Homeland Security $ 2.8 billion to help process immigration applications and reduce backlogs in case processing…and would recapture employment- and family-based green cards that have not been used and that otherwise would expire at the end of each year.” https://www.univision.com/noticias/inmigracion/democratas-senado-se-alistan-entregar-plan-c-de-inmigracion-a-parlamentarian (Spanish, with English translation available)
• “The Deadline to Comment on the New Regulation for DACA Published by the Government is Over,” Nov. 29, 2021. Mr. Yale-Loehr said, “The proposed rule would not make major changes to the existing deferred action program for children. Instead, the 205-page rule is an effort to bulletproof the existing program from litigation.” He recalled that in July, “a federal district judge in Texas ruled that the DACA program, initiated in 2012 by then-President Obama through executive action, violated the Administrative Procedure Act (APA).” He noted that the Department of Homeland Security’s (DHS) proposed rule “becomes more important now that the Senate parliamentarian has twice ruled that legalization provisions for DACA recipients cannot be included in the budget reconciliation bill. While Democrats will try to find other ways to provide a path of legalization for Dreamers, the proposed rule could be a temporary safety net if the legislation fails.” After the deadline for public comment, DHS will need to review them and issue a final rule. “The process could take several months before this rule takes effect,” he said. https://www.univision.com/noticias/inmigracion/finaliza-plazo-comentar-nuevo-reglamento-daca-publicado-por-gobierno (Spanish, with English translation available)

Mr. Yale-Loehr authored a new blog post, “Breaking Down the Build Back Better Act,” published by Global Detroit. https://globaldetroitmi.org/prof-stephen-yale-loehr-breaking-down-the-build-back-better-act/

Mr. Yale-Loehr was interviewed on National Public Radio’s The World about the immigration provisions in the social spending bill. The interview is at https://theworld.org/media/2021-11-11/latest-immigration-plan-congress-falling-short

Mr. Yale-Loehr was quoted by Univision in “Temporary Residence and Travel Permits: Immigration Measures Approved in Biden’s Social Plan in the House.” He said that “[t]he 2,135-page budget bill includes a number of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States The bill would also give the Department of Homeland Security $2.8 billion to help process immigration applications and reduce backlogs in case processing … and would recover employment-based and family-sponsored green cards that have not been used and that otherwise would expire at the end of each year. If enacted as is, the House bill would not offer a path to legalization for the roughly 10 million noncitizens who lack immigration status. However, the immigration provisions of the House bill would still constitute the most significant immigration changes in decades and would provide a beginning to fix our broken immigration system.” https://www.univision.com/noticias/inmigracion/residencia-temporal-permisos-de-viaje-claves-plan-migratorio-aprobado-camara-representantes-presupuesto (Spanish, with English translation available)

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Government Agency Links

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

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

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. USCIS Conducts Second Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations – On July 28, 2021, USCIS selected additional previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on July 28 will begin on August 2 and close on November 3, 2021.

2. Consent Order Provides Interim Relief to Certain Applicants Filing I-765s for OPT and STEM OPT – Under a court order, USCIS extended flexibilities for certain foreign students affected by delayed receipt notices for work authorization applications. The extension includes applications received on or after October 1, 2020, through October 31, 2021.

3. DHS Announces Registration Process for Haitian TPS – The 18-month initial registration period runs from August 3, 2021, through February 3, 2023. To be eligible, individuals must demonstrate that they have continuously resided in the United States since July 29, 2021.

4. USCIS Issues Reminder About Immigration Services That May Help Those Affected by Natural Disasters and Other Unforeseen Circumstances – Immigration services may be available on a case-by-case basis to help people “affected by unforeseen circumstances such as natural disasters.” Examples include “the wildfires in the western United States and the recent building collapse in Surfside, Florida.”

5. Biometrics Processing Unit Closes in Alexandria, VA – USCIS has closed the Biometrics Processing Unit in Alexandria, Virginia, which no longer receives mail.

6. New Asylum Office Opens in Tampa – USCIS will open a new asylum office in Tampa on August 2, 2021, “in response to an increasing asylum workload in Florida.”

7. New Credentialing Organization Approved for Healthcare Workers in Nursing – Josef Silny Associates, Inc., is approved as a credentialing organization for individuals seeking to enter the United States to work as a nurse.

8. Mass Afghan Evacuations Begin in Operation Fraught With Risk – In a complex operation fraught with delays, difficulties, and risk, the U.S. government is evacuating groups of Afghans eligible for Special Immigrant Visas based on their work for the United States, such as serving as translators and interpreters for U.S. forces in Afghanistan.

9. USCIS Updates Policy Manual – USCIS made several updates to its USCIS Policy Manual.

10. U.S. Extends Nonessential Travel Restrictions at Canada, Mexico Land Borders; Canada Opens to U.S. Citizens/Permanent Residents August 9 – Canadians and many other U.S.-bound international travelers can fly into the United States if they receive a negative COVID-19 test.

11. Applicants for Change of Status to F-1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’ – New USCIS policy guidance eliminates the need for individuals who have applied for a change of status to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 change of status application is pending.

12. Employers May File H-2B Petitions for Returning Workers for FY 2021, USCIS Says – Employers may file H-2B petitions for returning workers under the FY 2021 H-2B supplemental visa temporary final rule if they are likely to suffer irreparable harm without these additional workers, USCIS said.

13. USCIS Updates Addresses for Filing Locations for Certain Forms I-131 – USCIS did not change any filing locations but “refined attention lines and ZIP codes to improve internal processes at our lockboxes.”

14. Credit Card Payment Pilot Program Expanded for Certain Premium Processing Applicants – USCIS is expanding a pilot program at the Nebraska Service Center for accepting credit card payments from certain applicants applying for premium processing.

15. Temporary Protected Status Updates: Somalia, Burma, Syria, Venezuela, Yemen – DHS announced the extension and redesignation of Somalia for TPS through March 17, 2023. Also, TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela, or Yemen, or individuals without nationality who last habitually resided in one of those countries, can now file their TPS applications online if they are applying for TPS for the first time.

16. Justice Dept. Issues Reminder for DACA Recipients and Employers – Among other tips, DOJ noted that “existing DACA recipients are allowed to retain their grant of DACA and apply for renewal” and that employers are not expected to know which employees, if any, have DACA.

17. New DACA Applications Blocked by Federal Judge – New Deferred Action for Childhood Arrivals applications will not be allowed under a ruling by a U.S. district judge. The judge temporarily stayed his ruling for nearly 650,000 current DACA recipients.

18. No Surprise: Ombudsman’s Annual Report Says USCIS Faces ‘Unprecedented Challenges’ Due to Pandemic, Backlogs, Financial Issues – The Covid-19 pandemic “created unique challenges for USCIS,” the report notes, including temporary office closures and a lack of the ability for “end-to-end electronic processing.”

19. USCIS Reminds Employers to Take Action Within 10 Federal Government Working Days on Tentative Nonconfirmation Cases – Although most Social Security Administration offices are currently closed, this does not affect the 10-day requirement.

20. USCIS Updates Guidance on Acceptable I-9 Documents for Refugees and Asylees – Refugees and asylees are eligible for employment due to their status “and are authorized to work indefinitely because their immigration status does not expire.”

21. OFLC Releases FAQ on Implementation of Revised ETA-9141 – OFLC released Round 3 of frequently asked questions from the National Prevailing Wage Center on implementing the revised Application for Prevailing Wage Determination.

22. OFLC’s Atlanta Processing Center to Move in August – The mailing address for the Atlanta National Processing Center will change on August 25, 2021, with the exception of mail associated with the processing of applications requesting permanent labor certification subject to supervised recruitment.

23. Justice Dept. Settles Retaliation Claim – The settlement resolves DOJ’s finding that the company violated the law by retaliating against a worker because he asked for the agency’s help in addressing his concerns about an immigration-related employment practice.

24. USCIS Announces Updated Receipt Guidance for I-9 Process – USCIS announced updated guidance on receipts for the I-9 employment authorization verification process.

25. OFLC Implements District Court Order Requiring Backpay for Qualifying H-2A Workers – Certain H-2A employers must make wage adjustment payments to qualifying workers and certify compliance by September 4, 2021.

26. OFLC Completes Randomization Process, Publishes List of Randomized H-2B Applications for Employers Seeking H-2B Workers Starting October 1, 2021 – OFLC completed the randomization process to randomly assign to analysts for review and processing all H-2B applications submitted during a three-day filing window requesting an October 1, 2021, work start date. OFLC published the Assignment Group(s) for 873 H-2B applications covering 21,116 worker positions with a work start date of October 1, 2021.

27. National Interest Exceptions Extended to One Year, Embassies Report – U.S. Embassies in London and Berlin have reported that “all National Interest Exceptions (NIE) are now valid for 12 months and multiple entries as long as you are traveling for the same purpose for which you originally received an NIE.” The guidance does not apply to CBP requests and NIEs previously issued by CBP.

28. USCIS Extends and Redesignates Yemen for TPS, Suspends Certain Requirements for Yemeni F-1 Students – DHS announced the extension and redesignation of Yemen for temporary protected status through March 3, 2023. The agency also announced the suspension of certain regulatory requirements for Yemeni F-1 nonimmigrant students.

29. D.C. Court of Appeals Issues Decision in Wang v. Blinken – On July 9, 2021, the D.C. Court of Appeals issued its opinion in Wang v. Blinken, interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap.

30. ABIL Global: Canada – This article updates border measures for travelers entering Canada.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – August 2021

1. USCIS Conducts Second Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations

U.S. Citizenship and Immigration Services (USCIS) announced on July 29, 2021, that it needed to select additional H-1B registrations to reach the fiscal year (FY) 2022 quota. On July 28, 2021, the agency selected additional previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on July 28 will begin on August 2 and close on November 3, 2021. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details of when and where to file. Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved.

USCIS conducted an initial random selection in March 2021 of electronic registrations submitted for the FY 2022 H-1B cap and of beneficiaries eligible for the advanced degree exemption. The initial filing period for those selected for FY 2022 was April 1, 2021, through June 30, 2021.

On July 27, 2021, a group of plaintiffs in Liu v. Mayorkas filed a motion seeking to preliminarily enjoin the defendants from implementing, applying, or enforcing the H-1B cap registration rules (8 CFR § 214.2(h)(8)(iii)). They alleged that the Department of Homeland Security exceeded its authority and argued that implementation of the rules is arbitrary, capricious, an abuse of discretion, and not in accordance with the law. This was because there was evidence and data indicating that the FY 2022 registration process, if implemented, would lead to fraud, abuse, and a likely second lottery. Arguments regarding the injunction request will be heard on August 27, 2021.

Details:

• USCIS alert, July 29, 2021, https://www.uscis.gov/news/alerts/uscis-conducts-second-random-selection-from-previously-submitted-fy-2022-h-1b-cap-registrations
• Motion for preliminary injunction in Liu v. Mayorkas, https://www.dropbox.com/s/j7dk2asy52yp7y3/Liu%20Motion%20for%20PI.pdf?dl=0
• Amended complaint, https://aboutblaw.com/Ymz
• “Suit Seeks to Halt H-1B Visa System Called ‘Rife’ With Abuse,” Bloomberg Law, July 28, 2021, https://news.bloomberglaw.com/daily-labor-report/suit-seeks-to-halt-h-1b-visa-system-said-to-be-rife-with-abuse

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2. Consent Order Provides Interim Relief to Certain Applicants Filing I-765s for OPT and STEM OPT

Under a court order, U.S. Citizenship and Immigration Services (USCIS) extended flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. USCIS said the extension includes applications received on or after October 1, 2020, through October 31, 2021. Applicants can file Form I-765 up to 120 days before the program end date if the application is received by October 31, 2021.

For applicants who timely filed Form I-765 for Optional Practical Training (OPT) and Science, Technology, Engineering, and Mathematics (STEM) OPT and whose applications were later rejected, USCIS will accept a refiled Form I-765 as filed on the original filing date if:

• The original, timely filed application was received on or after October 1, 2020, through October 31, 2021; and
• USCIS subsequently rejected it.

For USCIS to treat the application as though filed on the original received date, refiled applications must be received by November 30, 2021.

Details:

• USCIS notice, July 29, 2021,
• Li v. USCIS, consent order, July 23, 2021, https://www.uscis.gov/sites/default/files/document/legal-docs/ECF%20No.%2013%20Signed%20Consent%20Order.pdf

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3. DHS Announces Registration Process for Haitian TPS

The registration process for Haitian Temporary Protected Status (TPS) will open on August 3, 2021, when the Federal Register notice is published. The 18-month initial registration period runs from August 3, 2021, through February 3, 2023.

Those who wish to request TPS under the Haiti designation must file an application, including approximately 55,000 current TPS Haiti beneficiaries whose TPS-related documentation was automatically extended at least through October 4, 2021, in compliance with court orders who must file a new TPS application under this designation to retain their status. An estimated 100,000 additional individuals can file initial applications for TPS if otherwise eligible.

To be eligible, individuals must demonstrate that they have continuously resided in the United States since July 29, 2021. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas modified the date from what was previously announced “in light of recent events in Haiti, including the July assassination of President Jovenel Moïse.” DHS said that those “who attempt to travel to the United States after July 29, 2021, will not be eligible for TPS and may be subject to expulsion or removal.”

Details:

• Haiti TPS designation, Federal Register notice (unpublished), DHS, https://public-inspection.federalregister.gov/2021-16481.pdf
• DHS announcement, July 30, 2021, https://www.uscis.gov/news/news-releases/dhs-announces-registration-process-for-temporary-protected-status-for-haiti
• Initial Haiti TPS announcement, DHS, May 22, 2021, https://www.dhs.gov/news/2021/05/22/secretary-mayorkas-designates-haiti-temporary-protected-status-18-months

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4. USCIS Issues Reminder About Immigration Services That May Help Those Affected by Natural Disasters and Other Unforeseen Circumstances

U.S. Citizenship and Immigration Services (USCIS) issued a reminder on July 28, 2021, that immigration services may be available on a case-by-case basis to help people “affected by unforeseen circumstances such as natural disasters.” Examples the agency listed include “the wildfires in the western United States and the recent building collapse in Surfside, Florida.” USCIS suggested the following measures:

• Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of an authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond the individual’s control;
• Re-parole 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 employment authorization applications, where 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 an individual was 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 Documents, and Arrival/Departure Record (Form I-94); and
• Rescheduling a biometrics appointment.

Those making such a request “should explain how the impact of unforeseen circumstances, such as a natural disaster, created a need for the requested relief. If you lost all forms of evidence in an unforeseen circumstance, include an explanation in your description and a copy of a police report, insurance claim, or other report, if available, to support your request.”

Details:

• USCIS alert, July 28, 2021, https://www.uscis.gov/news/alerts/immigration-help-available-to-those-affected-by-natural-disasters-and-other-unforeseen-circumstances

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5. Biometrics Processing Unit Closes in Alexandria, VA

U.S. Citizenship and Immigration Services (USCIS) has closed the Biometrics Processing Unit in Alexandria, Virginia. Those who need to reschedule an appointment for biometric services must call the USCIS Contact Center at 800-375-5283 before the date of the original appointment and “establish good cause for rescheduling.” The unit in Alexandria no longer receives mail.

Details:

• USCIS guidance, July 28, 2021, https://www.uscis.gov/forms/filing-guidance/preparing-for-your-biometric-services-appointment

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6. New Asylum Office Opens in Tampa

U.S. Citizenship and Immigration Services (USCIS) will open a new asylum office in Tampa on August 2, 2021, “in response to an increasing asylum workload in Florida.” The agency reported that the new office becomes the 11th asylum office in the United States and the second in Florida, joining the existing Miami Asylum Office.

According to USCIS, Florida currently leads the country in asylum applications filed with the agency, and more than a quarter of the national pending caseload is from Florida residents. The addition of the Tampa Asylum Office “will help USCIS resolve urgent cases quickly and better address the large number of asylum applications pending with USCIS in the state,” the agency said.

The Tampa Asylum Office will adjudicate asylum claims filed by individuals residing in western and northern Florida as well as portions of central Florida. The Miami Asylum Office will continue to adjudicate asylum claims filed by individuals residing in south Florida and portions of central Florida. Asylum interviews are by appointment only.

Details:

• USCIS release, July 30, 2021, https://www.uscis.gov/news/news-releases/new-uscis-asylum-office-to-open-in-tampa-on-aug-2

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7. New Credentialing Organization Approved for Healthcare Workers in Nursing

U.S. Citizenship and Immigration Services (USCIS) announced that Josef Silny Associates, Inc., is approved as of July 22, 2021, as a credentialing organization for individuals seeking to enter the United States to work as a nurse.

Details:

• Federal Register notice, July 29, 2021, https://www.govinfo.gov/content/pkg/FR-2021-07-29/pdf/2021-16181.pdf

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8. Mass Afghan Evacuations Begin in Operation Fraught With Risk

In a complex operation fraught with delays, difficulties, and risk, the U.S. government is evacuating groups of Afghans eligible for Special Immigrant Visas based on their work for the United States, such as serving as translators and interpreters for U.S. forces in Afghanistan. Among other obstacles, the Taliban have been expanding across the country and setting up checkpoints on various roads, and airport operations are threatened by violence. Although the situation is fluid and the numbers are somewhat unclear, below are reported highlights of the evacuations under “Operation Allies Refuge”:

• About 200 Afghans were flown to Fort Lee, Virginia, for processing before resettlement in the United States. They are among a larger group of about 2,500 eligible for Special Immigrant Visas who are further along in processing.
• About 4,000 Afghans and their relatives who are earlier in the visa application process will be flown to other countries for lengthier processing.
• There are roughly 20,000 applicants in the pipeline, along with family members. It is unclear whether all of them will be evacuated safely or what will happen to applicants who were deemed not qualified. The Department of State and the Pentagon reportedly are working together on relocation options at U.S. military installations in the country and elsewhere, possibly to include Qatar and Kuwait, with a goal of evacuating eligible Afghans by August 31, 2021, when the U.S. combat presence is targeted to end.
• Approximately 74,000 Afghans under the program have already been resettled since 2008.
• A bill passed the U.S. Senate and House of Representatives last week to provide more than $1 billion to pay for the evacuations, related transportation and housing, and resettlement costs. The bill also provides 8,000 additional visas over the 26,500 allocated currently. President Biden said he will sign the bill.

Details:

• “About 200 Afghan Interpreters and Family Members Arrive in U.S., in First Wave of Evacuations,” Washington Post, July 30, 2021, https://www.washingtonpost.com/world/2021/07/30/afghan-interpreters-evacuations/
• ‘Complete Disaster’: Inside the Biden Team’s Chaotic Bid to Evacuate Afghan Interpreters,” Politico, July 30, 2021, https://www.politico.com/news/2021/07/30/biden-evacuate-afghan-interpreters-501773

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9. USCIS Updates Policy Manual

U.S. Citizenship and Immigration Services (USCIS) made several updates to its USCIS Policy Manual. Highlights include:

• Policy guidance to address the urgent need for additional civil surgeons to conduct immigration medical examinations in support of Operation Allies Refuge (for certain Afghan Special Immigrant Visa applicants)
• Technical update adding references to the EB-5 visa program in Child Status Protection Act guidance
• Revised policy guidance to comply with a recent court order involving immigrant investors and investment of loan proceeds
• Policy guidance on change of status to nonimmigrant student (F-1) visa classification

Details:

• USCIS Policy Manual updates, https://www.uscis.gov/policy-manual/updates

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10. U.S. Extends Nonessential Travel Restrictions at Canada, Mexico Land Borders; Canada Opens to U.S. Citizens/Permanent Residents August 9

The United States has once again extended travel restrictions at its borders with Canada and Mexico for nonessential travel into the United States at least through August 21, 2021. The United States has done so monthly since March 2020 in response to the pandemic.

Canadians and many other U.S.-bound international travelers can fly into the United States if they receive a negative COVID-19 test. Canada announced on July 19, 2021, that fully vaccinated U.S. citizens and permanent residents can enter the country as of August 9, 2021. U.S. travelers to Canada must submit information electronically through ArriveCAN, meet eligibility and testing requirements, and bring vaccination documentation.

Canada plans to open its borders for discretionary travelers from any country, traveling by any means, on September 7, 2021, if they have been fully vaccinated with Canadian government-accepted vaccines at least 14 days before entering Canada and meet specific entry requirements, “provided that Canada’s COVID-19 epidemiology remains favourable,” the government announced on July 19, 2021.

U.S. and Mexican officials “have mutually determined that non-essential travel between the United States and Mexico currently poses additional risk of transmission and spread of the virus associated with COVID-19 and places the populace of both nations at increased risk of contracting the virus associated with COVID–19,” the Federal Register notice for Mexico states. “Moreover, given the sustained human-to-human transmission of the virus, coupled with risks posed by new variants, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Mexico, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19.” The Federal Register notice for Canada makes similar statements.

Details:

• Federal Register notice (Canada), July 22, 2021, https://www.govinfo.gov/content/pkg/FR-2021-07-22/pdf/2021-15573.pdf
• Federal Register notice (Mexico), July 22, 2021, https://www.govinfo.gov/content/pkg/FR-2021-07-22/pdf/2021-15574.pdf
• COVID-19 Information—Canada, U.S. Embassy & Consulates in Canada, July 21, 2021, https://ca.usembassy.gov/covid-19-information-canada-3/
• “U.S. Extends Travel Curbs at Canada, Mexico Land Borders Through Aug. 21,” Reuters, July 21, 2021, https://www.reuters.com/world/us/us-extends-travel-restrictions-canada-mexico-land-borders-through-aug-21-2021-07-21/
• “U.S. Border Closure Makes ‘No Sense’ as Canada Starts to Reopen for Fully Vaccinated Americans: Critics,” Vancouver Sun, July 21, 2021, https://vancouversun.com/news/politics/u-s-border-closure-makes-no-sense-as-canada-starts-to-reopen-for-fully-vaccinated-americans-critics
• “Easing Border Measures for Fully Vaccinated Travellers Entering Canada – Permitting Discretionary Travel for Citizens and Permanent Residents of the United States,” Govt. of Canada, July 19, 2021,
• “Canada to Reopen Its Borders to Fully Vaccinated Americans Starting Aug. 9,” USA Today, July 20, 2021, https://www.usatoday.com/story/travel/news/2021/07/19/canada-border-reopening-fully-vaccinated-us-citizens-aug-9/8016368002/
• “White House Won’t Commit to Reopening Northern Border, Despite Announcement From Canada,” CNN, July 20, 2021, https://www.cnn.com/2021/07/19/politics/us-canada-border-white-house/index.html

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11. Applicants for Change of Status to F-1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’

U.S. Citizenship and Immigration (USCIS) announced on July 20, 2021, new policy guidance that eliminates the need for individuals who have applied for a change of status to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 change of status application is pending.

Under the previous policy, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file extensions, or an initial change of status and subsequent extensions ensuring that they would not have a “gap” in status, USCIS explained.

To prevent a gap in status, USCIS said it will grant the change of status to F-1 effective the day the agency approves an applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status. If USCIS approves an application more than 30 days before the student’s program start date, the student must not violate F-1 status during that time. An example of a violation, USCIS said, “would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.”

USCIS said it is revising the Form I-539 instructions to reflect these changes.

Details:

• USCIS alert, July 20, 2021, https://www.uscis.gov/news/alerts/applicants-for-change-of-status-to-f-1-student-no-longer-need-to-submit-subsequent-applications-to
• “Policy Change to Benefit Children of H-1B Visa Holders in the U.S.,” Economic Times, July 22, 2021, https://economictimes.indiatimes.com/nri/migrate/policy-change-to-benefit-children-of-h-1b-visa-holders-in-the-us/articleshow/84607555.cms?from=mdr

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12. Employers May File H-2B Petitions for Returning Workers for FY 2021, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced on July 23, 2021, that employers may file H-2B petitions for returning workers under the fiscal year (FY) 2021 H-2B supplemental visa temporary final rule. “Employers may take this action if they are likely to suffer irreparable harm without these additional workers,” USCIS said. Petitions will be accepted until September 15, 2021, or until the remainder of the cap is reached, whichever occurs first.

The agency noted that a petitioner must file a new Form I-129, Petition for a Nonimmigrant Worker, together with an approved and valid temporary labor certification that states an employment start date for the second half of the fiscal year, and attest that these noncitizens will be returning workers. USCIS defines returning workers as “workers who were issued an H-2B visa or otherwise granted H-2B status in FY 2018, 2019, or 2020.”

USCIS received requests for an unspecified “significant number” of Northern Triangle (El Salvador, Guatemala, and Honduras) workers, “nearly enough to reach the 6,000 allocation,” but did not receive enough petitions by the July 8, 2021, deadline. According to the temporary final rule, “the few remaining visas are now available to eligible H-2B returning workers, regardless of their country of origin.”

Details:

• USCIS release, July 23, 2021, https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021
• FY 2021 H-2B supplemental visa temporary final rule, https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021
• “Temporary Increase in H-2B Nonimmigrant Visas for FY 2021,” USCIS, updated July 23, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2021

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13. USCIS Updates Addresses for Filing Locations for Certain Forms I-131

U.S. Citizenship and Immigration Services (USCIS) has adjusted the addresses for certain applicants filing Form I-131, Application for Travel Document. USCIS did not change any filing locations but “refined attention lines and ZIP codes to improve internal processes at our lockboxes.” The address update affects:

• Applicants with a pending Form I-485, Application to Register Permanent Residence or Adjust Status, who are filing Form I-131 alone with a Form I-485 receipt notice;
• Haitian family members filing for advance parole under the Haitian Family Reunification Parole program;
• Cuban family members filing under the Cuban Family Reunification Parole program;
• Deferred Action for Childhood Arrivals recipients;
• Humanitarian parole applicants;
• Refugee travel document applicants;
• Temporary Protected Status applicants; and
• All other applicants as noted on the Direct Filing Addresses for Form I-131 page.

USCIS said that it will still process any I-131 applications that were already mailed to the previous lockbox address.

Details:

• USCIS release, July 22, 2021, https://www.uscis.gov/news/alerts/filing-location-updates-for-certain-forms-i-131
• Direct Filing Addresses for Form I-131, updated July 22, 2021, https://www.uscis.gov/i-131-addresses

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14. Credit Card Payment Pilot Program Expanded for Certain Premium Processing Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on July 20, 2021, the expansion of a pilot program at the Nebraska Service Center (NSC) for accepting credit card payments using Form G-1450, Authorization for Credit Card Transactions, from certain applicants applying for premium processing.

On July 19, 2021, the NSC started accepting credit card payments using Form G-1450 for petitioners filing Form I-140, Immigrant Petition for Alien Workers, with Form I-907, Request for Premium Processing Service, or when filing Form I-907 to upgrade a pending Form I-140 to premium processing. The pilot continues to be limited to the NSC. At the end of the pilot, USCIS said, it “will evaluate the results and determine the next steps for expanding this payment option for other forms or other service centers. The goal of this pilot is to bring USCIS one step closer to accepting digital payments using a credit card at all service centers.”

Details:

• USCIS notice, July 20, 2021, https://www.uscis.gov/news/alerts/uscis-expands-credit-card-payment-pilot-program-to-form-i-140-when-requesting-premium-processing

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15. Temporary Protected Status Updates: Somalia, Burma, Syria, Venezuela, Yemen

On July 21, 2021, the Department of Homeland Security announced the extension and redesignation of Somalia for Temporary Protected Status (TPS) for 18 months, from September 18, 2021, through March 17, 2023, due to “the ongoing armed conflict and extraordinary and temporary conditions in Somalia.”

Also, TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela, or Yemen, or individuals without nationality who last habitually resided in one of those countries, can now file Form I-821, Application for Temporary Protected Status, online if they are applying for TPS for the first time. The option to file Form I-821 online is only available to initial TPS applicants from these five countries. USCIS said it is starting with these countries because they are either new designations or recently announced re-designations.

All other TPS applicants and current beneficiaries who are re-registering under the extension of a TPS designation must continue to file a paper Form I-821. If an initial TPS applicant from a country other than Burma, Somalia, Syria, Venezuela, or Yemen or a re-registrant files Form I-821 online, USCIS “will deny the application and retain the fee. USCIS is working to make online filing available for re-registrants and initial applicants for all TPS designations in the future.”

Details:

• DHS announcement re Somalia TPS, July 21, 2021, https://www.uscis.gov/news/news-releases/dhs-announces-extension-and-redesignation-of-somalia-for-temporary-protected-status
• Extension and Redesignation of Somalia for Temporary Protected Status, DHS/USCIS, July 22, 2021 (Federal Register notice), https://www.govinfo.gov/content/pkg/FR-2021-07-22/pdf/2021-15595.pdf
• “TPS Applicants From Five Designated Countries Can Now File Initial Applications Online,” USCIS, July 21, 2021, https://www.uscis.gov/news/news-releases/tps-applicants-from-five-designated-countries-can-now-file-initial-applications-online

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16. Justice Dept. Issues Reminder for DACA Recipients and Employers

The Department of Justice (DOJ) released a reminder for Deferred Action for Childhood Arrivals (DACA) recipients and employers on July 21, 2021. The reminder notes that on July 16, 2021, a federal court found DACA unlawful, which means that the government cannot grant new DACA applications. But existing DACA recipients are allowed to retain their grant of DACA and apply for renewal, DOJ noted. “The district court ruling does not affect ICE’s [U.S. Immigration and Customs Enforcement] existing enforcement guidelines. The ruling made clear that it did not ‘require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.’ In light of the court decision, DOJ said, “we are issuing these reminders about employment discrimination and immigrant employee rights.”

The reminders include these and other points:

• DACA recipients with current, unexpired Employment Authorization Documents (EADs) continue to be authorized to work.
• For the time being, workers who already have DACA can continue to renew their DACA EADs.
• USCIS will provide additional guidance for DACA requestors and recipients in the coming days.
• DACA recipients are not required to tell employers they have DACA.
• Employers are not expected to know which employees, if any, have DACA, and the court’s decision does not require employers to review Forms I-9, reverify employment authorization, or take any action at all.
• Employers are not required or encouraged to ask their employees or job applicants about their immigration status or whether they have DACA.
• When hiring a new employee, employers are required to verify the employee’s identity and authorization to work, not their immigration status.
• The court decision does not require employers to review or audit their Forms I-9. If an employer decides to review its Forms I-9, it should do so in a non-discriminatory way.

Details:

• “Reminders for DACA Recipients and Employers,” Dept. of Justice, July 21, 2021, https://www.justice.gov/crt/reminders-daca-recipients-and-employers (English), https://www.justice.gov/crt-espanol/recordatorios-para-beneficiarios-de-daca-y-empleadores (Spanish)
• Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision, July 19,, 2021, https://www.uscis.gov/news/news-releases/statement-from-uscis-acting-director-tracy-renaud-on-deferred-action-for-childhood-arrivals-daca

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17. New DACA Applications Blocked by Federal Judge

New Deferred Action for Childhood Arrivals (DACA) applications will not be allowed under a ruling by a U.S. district judge in Texas on July 16, 2021. The judge ruled that DACA violated the Administrative Procedure Act but temporarily stayed his ruling for the nearly 650,000 current DACA recipients, referred to as “Dreamers.” Current DACA recipients may seek renewal of their authorization to remain and work in the United States.

Tech companies, including Twitter, Google, Microsoft, and Adobe, expressed their disappointment with the ruling and urged Congress to protect the program. President Biden echoed those comments and said the U.S. will appeal the ruling, noting that it “relegates hundreds of thousands of young immigrants to an uncertain future.” He said it was his “fervent hope” that Congress would pass legislation to provide a permanent status for DACA recipients.

Details:

• Texas v. United States, July 16, 2021, https://s3.documentcloud.org/documents/21010983/7-16-21-texas-v-us-opinion.pdf
• S. Tech Companies Disappointed With DACA Ruling, Urge Congress to Act,” July 17, 2021, https://www.reuters.com/world/us/us-tech-companies-disappointed-with-daca-ruling-urge-congress-act-2021-07-17/
• “Biden Pledges Appeal of ‘Deeply Disappointing’ DACA Ruling,” NBC News, July 17, 2021, https://www.nbcnews.com/politics/politics-news/biden-pledges-appeal-deeply-disappointing-daca-ruling-n1274280
• “U.S. Judge Blocks New Applicants to Program That Protects Undocumented ‘Dreamers’ Who Arrived as Children,” Washington Post, July 17, 2021, https://www.washingtonpost.com/immigration/daca-court-decision/2021/07/16/6c9a35be-e677-11eb-a41e-c8442c213fa8_story.html
• “Federal Judge Declares DACA Program Illegal, But Halts Only New Applications,” NBC News, July 16, 2021, https://www.nbcnews.com/politics/immigration/federal-judge-declares-daca-program-illegal-halts-only-new-applications-n1274247
• Statement by DHS Secretary Mayorkas on DACA Ruling, July 17, 2021, https://www.dhs.gov/news/2021/07/17/statement-secretary-mayorkas-daca-ruling

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18. No Surprise: Ombudsman’s Annual Report Says USCIS Faces ‘Unprecedented Challenges’ Due to Pandemic, Backlogs, Financial Issues

The Citizenship and Immigration Services (CIS) Ombudsman’s Annual Report for 2021 states that U.S. Citizenship and Immigration Services (USCIS) “faces unprecedented challenges this year on virtually every front—from financial pressures to substantial backlogs across applications and petitions of all types.” The Covid-19 pandemic “created unique challenges for USCIS,” the report notes, including temporary office closures and a lack of the ability for “end-to-end electronic processing.” Once USCIS returned to operations at a reduced capacity, the agency had substantial backlogs of in-person appointments that needed rescheduling. The pandemic also exacerbated the agency’s preexisting financial issues and “decimated carryover funding needed to maintain its operations.” The problems began in 2020 and persisted into 2021: “The lingering effects of temporary office closures, insufficient revenue, and budget cuts continue to impact processing time and customer service functions.”

The report also identified other key areas of focus, including persistent problems with the issuance of Notices to Appear; challenges in the medical disability test waiver process; continuing complications in USCIS’s digital strategy; and issues in international student programs, among others.

The report identifies several key objectives, including expanded electronic filing and processing capabilities, increased outreach with stakeholders, and improved coordination between USCIS and other government agencies.

Details:

• Annual Report 2021, Citizenship and Immigration Services Ombudsman, June 30, 2021, Dept. of Homeland Security, https://www.dhs.gov/sites/default/files/publications/dhs_2021_ombudsman_report_med_verified.pdf

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19. USCIS Reminds Employers to Take Action Within 10 Federal Government Working Days on Tentative Nonconfirmation Cases

U.S. Citizenship and Immigration Services (USCIS) reminded employers that they must take action on Tentative Nonconfirmation (TNC) cases for their employees within 10 federal government working days. USCIS noted that although most Social Security Administration offices are currently closed, this does not affect the 10-day requirement.

The reminder sets forth specific steps employers should take in E-Verify within the timeframe after issuance of a TNC result.

Details:

• USCIS reminder,

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20. USCIS Updates Guidance on Acceptable I-9 Documents for Refugees and Asylees

U.S. Citizenship and Immigration (USCIS) updated its Handbook for Employers (M-274) to remind employers that refugees and asylees may present any acceptable documents in their possession to fulfill I-9 employment authorization verification requirements.

USCIS noted that refugees and asylees are eligible for employment due to their status “and are authorized to work indefinitely because their immigration status does not expire.” They may present any List A document or combination of List B and List C documents from the Form I-9 lists. They may also present an “acceptable receipt” instead of the List A, B, or C document. The handbook includes additional details.

Details:

• USCIS Handbook for Employers (M-274), Section 6.3, Refugees and Asylees, updated July 13, 2021, https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-evidence-of-status-for-certain-categories/63-refugees-and-asylees

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21. OFLC Releases FAQ on Implementation of Revised ETA-9141

On July 16, 2021, the Department of Labor’s Office of Foreign Labor Certification (OFLC) released Round 3 of frequently asked questions (FAQs) from the National Prevailing Wage Center (NPWC) to respond to inquiries from a webinar on implementing the revised Form ETA-9141, Application for Prevailing Wage Determination. The revised form provides a separate section to be completed by employers who accept alternative job requirements in addition to the minimum job requirements.

OFLC said the new alternative job requirements section (1) improves NPWC’s ability to ensure that prevailing wages provided to employers and listed on the Form ETA-9089 do not adversely affect U.S. workers and support a valid labor market test in instances where the alternative requirements would result in a higher wage; and (2) reduces employers’’ burden of completing a separate Form ETA-9141 for each set of requirements.

Details:

• OFLC notice, https://www.dol.gov/agencies/eta/foreign-labor

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22. OFLC’s Atlanta Processing Center to Move in August

The Department of Labor’s Office of Foreign Labor Certification (OFLC) mailing address for its Atlanta National Processing Center (ANPC) will change on August 25, 2021, with the exception of mail associated with the processing of applications requesting permanent labor certification subject to supervised recruitment.

Effective August 25, 2021, any mail, including U.S. Postal Service and other courier mail or parcel delivery packages, sent to ANPC must be submitted to the following new mailing address, according to an OFLC notice: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, 200 Constitution Avenue, NW, Room N-5311, Washington, DC 20210. One exception is mail associated with Supervised Recruitment under 20 CFR 656.21, which must continue to be submitted to: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Atlanta National Processing Center, Attn: Supervised Recruitment, P.O. Box 56625, Atlanta, GA 30343.

OFLC said employers must provide ANPC’s correct new mailing address on the Notice of Filing (NOF) posted when employers file a Form ETA-9089, Application for Permanent Employment Certification. “If the required 10-day posting period for a NOF commences after September 5, 2021, employers must include the new mailing address contained in the notice,” OFLC said.

Details:

• OFLC notice, https://www.dol.gov/agencies/eta/foreign-labor
• Federal Register notice, Employment and Training Administration, July 16, 2021, https://www.govinfo.gov/content/pkg/FR-2021-07-16/pdf/2021-15112.pdf

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23. Justice Dept. Settles Retaliation Claim

The Department of Justice (DOJ) announced on July 15, 2021, that it reached a settlement agreement with Around the Clock Dispatch Inc., a freight and delivery services company in Queens Village, New York. The settlement resolves DOJ’s finding that the company violated the law by retaliating against a worker because he asked for the agency’s help in addressing his concerns about an immigration-related employment practice.

The worker filed a charge and the company suspended the worker for three days without pay. Under the settlement, the company will pay $3,600 in civil penalties to the United States and nearly $900 in back pay to the worker. The settlement also requires the company to train employees on the Immigration and Nationality Act’s anti-discrimination provision and be subject to DOJ monitoring and reporting requirements.

Details:

• Press Release, Dept. of Justice, July 15, 2021,

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24. USCIS Announces Updated Receipt Guidance for I-9 Process

U.S. Citizenship and Immigration Services (USCIS) announced updated guidance on receipts for the I-9 employment authorization verification process:

• When employees present a receipt showing that they applied to replace a List A, B, or C document that was lost, stolen, or damaged, they should show their employer the replacement document for which the receipt was given. However, USCIS acknowledged that this is not always possible due to document delays, changes in status, or other factors.
• If the employee does not present the original document for which the previously provided receipt was issued but presents, within the 90-day period, another acceptable document (or documents) to demonstrate his or her identity and/or employment authorization, employers may now accept such documentation.

In cases where an employee presents a document (or documents) other than the actual replacement document, the employer should complete a new Section 2 and attach it to the original Form I-9, USCIS said. In addition, the employer should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.

Details:

• USCIS guidance, June 25, 2021, https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents/updated-receipts-guidance

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25. OFLC Implements District Court Order Requiring Backpay for Qualifying H-2A Workers

Under a court order in United Farm Workers v. DOL, the Department of Labor’s Office of Foreign Labor Certification (OFLC) announced on July 6, 2021, that H-2A employers that submitted job orders (Form ETA-790/790A) to state workforce agencies or applications for H-2A temporary labor certification (Form ETA-9142A) to DOL between December 21, 2020, and February 23, 2021, must make wage adjustment payments to qualifying workers and certify compliance by September 4, 2021.

The payments must be made to qualifying H-2A workers and U.S. farmworkers in corresponding employment who worked during the period from January 15, 2021, to February 23, 2021, and received an hourly wage below the geographically applicable 2021 Adverse Effect Wage Rate (AEWR). Each wage adjustment payment must equal the total number of hours a farmworker worked from January 15, 2021, to February 23, 2021, multiplied by the difference between the wage received and the geographically applicable 2021 AEWR.

Details:

• OFLC notice, July 6, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Court order, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ECF%2074%20-%20Modification%20to%20Backpay%20Order.pdf

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26. OFLC Completes Randomization Process, Publishes List of Randomized H-2B Applications for Employers Seeking H-2B Workers Starting October 1, 2021

The Department of Labor’s Office of Foreign Labor Certification (OFLC) completed the process to randomly assign to analysts for review and processing all H-2B applications submitted during the three-day filing window (July 3-5, 2021) requesting an October 1, 2021, work start date. OFLC published the Assignment Group(s) for 873 H-2B applications covering 21,116 worker positions with a work start date of October 1, 2021.

Since the number of H-2B applications received during the three-day filing window collectively requested fewer worker positions for certification than the number of visas available under the semi-annual visa allotment for the first half of fiscal year 2022, all H-2B applications filed within that time period that requested workers starting October 1, 2021, were randomly given a unique number in accordance with OFLC’s randomization process and were placed into the same group for assignment to analysts for review and processing.

Details:

• OFLC notice, July 9, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Assignment groups for H-2B applications submitted July 3-5, 2021, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2B%20Randomization%20List%20July%202021.pdf

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27. National Interest Exceptions Extended to One Year, Embassies Report

U.S. embassies in London and Berlin have reported that “all National Interest Exceptions (NIE) are now valid for 12 months and multiple entries as long as you are traveling for the same purpose for which you originally received [a National Interest Exception (NIE)].” According to the U.S. embassy in Berlin, this new policy was effective July 5, 2021.

Presidential Proclamation 10143 allows the entry of any noncitizen whose entry would be in the national interest. Previously, all NIEs were only valid for 30 days and only approved for a single entry into the United States. Those already issued NIEs now may enter the country multiple times, provided they are traveling for the same pre-approved purpose stated in their original NIE.

U.S. Customs and Border Protection (CBP) confirmed that the above guidance does not apply to CBP requests and NIEs previously issued by CBP.

Details:

• Klasko Client Alert, July 6, 2021,
• of State announcement, updated July 6, 2021, https://travel.state.gov/content/travel/en/News/visas-news/extension-validity-for-nies-for-china-iran-brazil-south-africa-schengen-uk-ireland-india.html

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28. USCIS Extends and Redesignates Yemen for TPS, Suspends Certain Requirements for Yemeni F-1 Students

On July 9, 2021, the Department of Homeland Security (DHS) announced the extension and redesignation of Yemen for temporary protected status (TPS). On the same date, DHS announced the suspension of certain regulatory requirements for Yemeni F-1 nonimmigrant students who are experiencing severe economic hardship because of the current crisis in Yemen.

TPS extended and redesignated. TPS for Yemen is extended and redesignated for 18 months, from September 4, 2021, through March 3, 2023. The extension allows currently eligible TPS beneficiaries to retain TPS through March 3, 2023, so long as they otherwise continue to meet the eligibility requirements for TPS. The redesignation allows additional individuals who have been continuously residing in the United States since July 5, 2021, to obtain TPS, if otherwise eligible.

The notice sets forth procedures necessary for Yemeni nationals (or individuals having no nationality who last habitually resided in Yemen) either to submit an initial registration application under the redesignation and apply for an employment authorization document (EAD) or, if they already have TPS, to re-register under the extension and to apply for renewal of their EADs with U.S. Citizenship and Immigration Services (USCIS). USCIS will issue new EADs with a March 3, 2023, expiration date to eligible beneficiaries under Yemen’s TPS designation who timely reregister and apply for EADs under the extension, or who timely register and apply for EADs under the redesignation.

Requirements suspended for Yemeni students. Effective September 4, 2021, through March 3, 2023, Yemeni citizens (regardless of country of birth) who are lawful F-1 nonimmigrant students can request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain F-1 status. DHS said it will deem an F-1 nonimmigrant student who receives employment authorization “by means of this notice to be engaged in a ‘full course of study’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.”

Details:

• DHS/USCIS notice extending/redesignating Yemen TPS, July 9, 2021, https://www.govinfo.gov/content/pkg/FR-2021-07-09/pdf/2021-14670.pdf
• DHS/ICE notice suspending certain requirements for Yemeni F-1 students, July 9, 2021, https://www.govinfo.gov/content/pkg/FR-2021-07-09/pdf/2021-14676.pdf
• USCIS release, July 7, 2021, https://www.uscis.gov/news/news-releases/dhs-publishes-federal-register-notice-extending-and-re-designating-yemen-for-temporary-protected
• Secretary Mayorkas announcement, July 6, 2021, https://www.uscis.gov/news/news-releases/secretary-mayorkas-announces-extension-and-re-designation-of-yemen-for-temporary-protected-status

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29. D.C. Court of Appeals Issues Decision in Wang v. Blinken

On July 9, 2021, the D.C. Court of Appeals issued its opinion in Wang v. Blinken, interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap. Plaintiffs had argued that INA § 203(d) is ambiguous and could also be interpreted as not including the counting of family members. Judge Walker, who authored the opinion, interpreted the key phrase “same status” at 8 U.S.C. § 1153(d) to mean that because an EB-5 investor’s family members get the same type of visa, they must also be counted against the cap, and reasoned that “same order of consideration provided in the respective subsection,” which refers to the worldwide cap on employment-based visas, further indicates that spouses and children of EB-5 investors are subject to the cap.

Details:

• Opinion: https://www.cadc.uscourts.gov/internet/opinions.nsf/A556BEBE1606BBA08525870D0050CBCF/$file/20-5076-1905648.pdf

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30. ABIL Global: Canada

This article updates border measures for travelers entering Canada.

On July 19, 2021, the government of Canada announced the details of the next phase of its approach to easing border measures for travelers entering Canada. As a result of increased vaccination rates, declining COVID-19 cases, and reduced pressure on health care capacity in Canada, the government plans a number of changes.

Beginning August 9, 2021, fully vaccinated U.S. citizens and permanent residents, currently residing in the United States, will be permitted to enter Canada for discretionary (non-essential) travel. On September 7, 2021, provided that the domestic epidemiologic situation remains favorable, the government will open Canada’s borders to all fully vaccinated travelers.

As of July 5, 2021, fully vaccinated travelers who are permitted to enter Canada are not subject to the federal requirement to quarantine or to take a Covid-19 test. In addition, fully vaccinated travelers arriving by air will not be required to stay at a government-authorized hotel. Pre-and on-arrival Covid-19 testing requirements for travelers arriving by air or land to Canada continue to apply.

Below are questions and answers on selected highlights of these developments:

What will change on August 9, 2021?

Entry to Canada

As noted above, fully vaccinated U.S. citizens and permanent residents, currently residing in the United States, can travel to Canada for discretionary (non-essential) purposes. Additionally, unvaccinated children under 12 years of age, or unvaccinated dependent children (due to a mental or physical condition), who are U.S. citizens or permanent residents currently residing in the United States may also enter Canada. To be allowed entry, such children must be accompanying a fully vaccinated parent, step-parent, guardian, or tutor who is permitted to enter Canada.

To be considered fully vaccinated, travelers must have received two doses or a combination of the Pfizer, Moderna, or AstraZeneca/COVISHIELD vaccines or a single dose of the Janssen (Johnson & Johnson) vaccine, at least 14 days before their entry to Canada.

Also, Transport Canada will expand the scope of the existing Notice to Airmen that currently directs scheduled international commercial passenger flights into the four major Canadian airports. Effective August 9, 2021, international flights carrying passengers will be permitted to land at the following five additional Canadian airports: Halifax Stanfield International Airport; Québec City Jean Lesage International Airport; Ottawa Macdonald-Cartier International Airport; Winnipeg James Armstrong Richardson Internal Airport; and Edmonton International Airport.

Testing and Temperature Screening Requirements

Canada will begin a new border testing surveillance program at airports and land border crossings. Beginning August 9, 2021, fully vaccinated travelers will not need a post-arrival test unless they have been randomly selected to complete a Day 1 COVID-19 molecular test. Transport Canada will also remove the requirement for the Canadian Air Transport Security Authority to perform pre-board temperature screening of passengers and airport workers on all domestic flights and international departures.

In a positive development for Canadians, Canadian citizens and permanent residents traveling to the United States for less than 72 hours will now be permitted to do their pre-entry test in Canada. Therefore, such individuals will no longer be required to receive a second COVID-19 molecular test result in the United States before returning to Canada.

Quarantine Requirements

As of August 9, 2021, the three-night government-authorized hotel stay requirement for all travelers arriving by air will be eliminated. Additionally, unvaccinated children under 12 years of age and dependent children (due to a mental or physical condition) of fully vaccinated travelers will no longer have to complete a 14-day quarantine but must follow strict public health measures. This means they can move around with their parents, but must avoid group settings—such as camps, daycares, or schools—during the first 14 days after their arrival. Unvaccinated children will remain subject to the Day 1 and Day 8 testing requirements.

Provinces and territories may have more stringent rules regarding people who have recently returned from travel.

What will change on September 7, 2021?

As of July 22, 2021, the government of Canada plans to open Canada’s borders to all fully vaccinated travelers as of September 7, 2021. This plan is contingent on the domestic epidemiologic situation remaining favorable in Canada. The preliminary step of permitting U.S. travelers’ entry into Canada for discretionary (non-essential) purposes will allow the government to fully operationalize the adjusted border measures ahead of September 7, 2021.

What requirements are still in place?

For travelers who are not fully vaccinated, there are no changes to Canada’s current mandatory testing requirements. Such travelers must still complete a mandatory 14-day quarantine requirement, subject to limited exceptions. However, as mentioned above, the three-night government-authorized hotel stay requirement for all travelers arriving by air will be eliminated.

Fully vaccinated travelers must also be asymptomatic, have a paper or digital copy of their vaccination documentation in English or French (or certified translation, along with the original), and provide COVID-19-related information electronically through the ArriveCAN app before arriving in Canada. They must still present a suitable quarantine plan and be prepared to quarantine if it is determined at the border that they do not meet all of the conditions required to be exempt from quarantine. As with all other exempt travelers, they must follow public health measures in place, such as wearing a mask when in public and keeping a copy of their vaccine and test results available, as well as a list of close contacts for 14 days after entry to Canada.

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New Publications and Items of Interest

Webinar on TPS for Somalia. USCIS will hold a webinar on Temporary Protected Status (TPS) for Somalia on Wednesday, August 11, 2021, from 2 to 3 pm ET. The webinar will include an explanation of eligibility requirements and filing tips. For more information or to register, see https://www.uscis.gov/outreach/upcoming-national-engagements/temporary-protected-status-tps-for-somalia E-Verify podcast. Tammy Meckley, Associate Director, Immigration Records and Identity Services Directorate, U.S. Citizenship and Immigration Services, explains key aspects of E-Verify in this podcast from Equifax Workforce Solutions, “E-Verify and I-9 News: Straight From the Top, Part 1.” https://workforce.equifax.com/e-verify-and-i-9-news-straight-from-the-top-part-1 E-Verify redesigns web pages. E-Verify launched redesigned webpages for the Employer and Employer Agent Profile, and the Corporate Administrator Profile. Functionality remains the same. E-Verify said the redesign enhances usability, makes it easier to update company information, and updates the look and feel. https://www.e-verify.gov/employers Immigrant and Employee Rights Section webinars. The Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division is offering free webinars for the public. There are webinars for workers, employers, and advocates. https://www.justice.gov/crt/webinars 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

• Coronavirus.gov: Primary federal site for general coronavirus information
• USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
• CDC.gov/coronavirus: Centers for Disease Control and Prevention information

• American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
• NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

• https://www.dhs.gov/coronavirus-news-updates
• https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

• USCIS: USCIS.gov/coronavirus
• ICE:
• Overview and FAQs: https://www.ice.gov/coronavirus
• Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
  pdf
• CBP:

• Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
• Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

• Office of Foreign Labor Certification:

• OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
• COVID-19 FAQs:
  • Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
  • Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
  • Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

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

• Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
• Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
• J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

• Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has published a new blog entry: “Moving the Goalposts: Name, Image, and Likeness Compensation for Foreign Student Athletes.” https://www.klaskolaw.com/news-politics/foreign-student-athletes-name-image-and-likeness-compensation/

Sophia Genovese, formerly of Cyrus D. Mehta and Partners, PLLC, has authored a new blog post: “The Fight for Immigration Justice Is Not Over: SCOTUS Rules Mandatory Detention of Certain Immigrants Seeking Safety in the United States.” Cyrus D. Mehta and Partners, PLLC, has published a new blog post by guest author Stacy Caplow: “The Sinking Immigration Court: Change Course, Save the Ship.” http://blog.cyrusmehta.com/2021/08/the-sinking-immigration-court-change-course-save-the-ship.html#_edn2

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted by the Economic Times of India in “Policy Change to Benefit Children of H-1B Visa Holders in the U.S.” The article quoted Mr. Mehta’s tweet, “USCIS does away with burdensome ‘gap’ status applications when one changes to F-1. This will provide some relief to children of backlogged skilled immigrants who age out, although the optimum solution is to get rid of per country limits and add more visas.” https://economictimes.indiatimes.com/nri/migrate/policy-change-to-benefit-children-of-h-1b-visa-holders-in-the-us/articleshow/84607555.cms?from=mdr (article); https://twitter.com/cyrusmehta/status/1417628691241349121 (Twitter)

Mr. Mehta co-authored a blog post with Isabel Rajabzadeh: “No Longer in Use: How Changes in SOC Systems Affect Employment-Based Immigration.” http://blog.cyrusmehta.com/2021/07/no-longer-in-use-how-changes-in-soc-systems-affect-employment-based-immigration.html

Mr. Mehta and Kaitlyn Box co-authored several blog posts: “Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps,” , and “Requesting Premium Processing on a Downgraded I-140 Petition,” http://blog.cyrusmehta.com/2021/07/requesting-premium-processing-on-a-downgraded-i-140-petition.html

Mr. Mehta was quoted by the Times of India in “U.S. Court Quashes Plea to Exclude Family Members From EB-5 Annual Visa Quota.” He said that a provision in the Immigration and Nationality Act “could be interpreted to not count family members. Although the case involved plaintiffs who limited their argument to the EB-5 cap for investor green cards, this case will cast a pall on additional lawsuits by plaintiffs making the same argument under other employment or family visa categories.”

Wolfsdorf Rosenthal LLP has published a new blog post: “A ‘Giant Sucking Sound’: Why Are We Losing Top Talent?” https://wolfsdorf.com/a-giant-sucking-sound-why-are-we-losing-top-talent/ Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) co-authored an op-ed published in The Hill, “Vaccine Xenophobia Against Immigrants and Refugees Must End.” The op-ed suggests, among other things, that “[b]uilding immigrant-citizen collaborations in high-income countries to advocate for the rights of those who have no voice or are fearful of repercussions is one way to improve vaccine equity, especially among forcibly displaced populations. This can be in the form of working with nongovernmental organizations, voicing concerns to Congress about sharing superfluous vaccines with other countries, eliminating unnecessary visa exclusions, investing in humanitarian border operations, and engaging in community outreach programs to empower displaced individuals by compiling reliable and accessible resources about their eligibility for healthcare benefits, including vaccines.” https://thehill.com/opinion/immigration/564663-vaccine-xenophobia-against-immigrants-and-refugees-must-end Mr. Yale-Loehr was quoted by the Ritz Herald in “CDC Immigration Order Lifted for Children, Should Expand for Adults.” He said the Centers for Disease Control and Prevention (CDC) order is a good first step, but more needs to be done. “The Title 42 order has been heavily criticized, and properly so. Immigrant advocates claim that the public health order has put migrants in harm’s way by forcing them to remain in Mexico. For example, on June 30, over 100 groups urged the Biden administration to fully rescind Title 42 expulsions. Unaccompanied noncitizen children had been temporarily exempted from the Title 42 order. Today’s announcement makes that exemption official, based on the CDC’s assessment that it can properly assess the risk of COVID-19 transmission among children and provide vaccinations to children ages 12 and over. The CDC should go further by rescinding its Title 42 order for everyone. There is no valid public health rationale for expelling people fleeing persecution, when millions of other people enter the United States on visas every year.” https://ritzherald.com/cdc-immigration-order-lifted-for-children-should-expand-for-adults/
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Government Agency Links

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

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

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. Cap Reached for Additional Returning Worker H-2B Visas for FY 2021 – Under the recently announced H-2B supplemental cap temporary final rule, USCIS has received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only. USCIS continues to accept petitions for H-2B nonimmigrant workers for the additional 6,000 visas allotted for nationals of Honduras, Guatemala, and El Salvador.

2. State Dept. Expands National Interest Exception Criteria for Travelers from Covid-Restricted Countries – The Department expanded the NIE criteria for individuals subject to proclamations restricting travel to the United States due to physical presence in China, Iran, India, Brazil, South Africa, the Schengen Area, the United Kingdom, and Ireland.

3. DHS Terminates Migration Protection Protocols Program – Alejandro Mayorkas, DHS Secretary, announced on June 1, 2021, that he has terminated the Migration Protection Protocols (MPP) program.

4. ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility – U.S. Immigration and Customs Enforcement announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

5. USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals – Fully vaccinated individuals no longer have to wear a face covering. USCIS also eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms.

6. DHS Designates Haiti for Temporary Protected Status – The Department of Homeland Security has designated Haiti for TPS for 18 months.

7. DHS Designates Burma (Myanmar) for Temporary Protected Status – The Department of Homeland Security has designated Burma (Myanmar) for TPS through November 25, 2022.

8. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From Burma (Myanmar) – The Department of Homeland Security announced the suspension until November 25, 2022, of certain regulatory requirements for F-1 nonimmigrant students from Burma (Myanmar) who are experiencing severe economic hardship as a result of the current crisis in Burma.

9. Higher Education Associations Urge Biden Administration to Take Action to Allow International Students to Return to Campus In Time for Fall Semester – The associations ask for timely and efficient processing of visa applications and work authorizations.

10. CBP Continues Temporary Travel Restrictions From Canada, Mexico Into United States Via Land POEs and Ferries – Temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through June 21, 2021.

11. Round Table of Former Immigration Judges Asks Attorney General to Review, Rescind Trump Administration Decisions – The group asked Attorney General Merrick Garland to “review and rescind many, if not all, of the decisions that former Attorneys General Sessions, Whitaker, Barr, and Rosen certified to themselves.”

12. DHS, DOJ Announce New Dedicated Docket Process for Immigration Hearings – The new process is intended to “significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border.”

13. DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap – The Departments of Homeland Security and Labor published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for nationals of Honduras, El Salvador, and Guatemala.

14. DHS Issues Final Rule to Remove Vacated H-1B Rule – The vacated interim final rule, issued in October 2020, made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.

15. USCIS Extended SAVE Records Download Deadline – U.S. Citizenship and Immigration Services extended the deadline for SAVE users to download older case information before USCIS disposed of it. This applied to SAVE records that were more than 10 years old (those dated on or before December 31, 2010).

16. ETA Proposes Revision to CW-1 Application for Temporary Employment Certification in Marianas – The information collected through the form remains unchanged.

17. State Dept. Announces Updated Interpretation of Acquisition of Citizenship at Birth – The Department of State announced on May 18, 2021, an update in its interpretation and application of the requirements for acquisition of U.S. citizenship at birth in light of advances in assisted reproductive technology.

18. DHS Announces Continuation of International Entrepreneur Program – USCIS said the program, first introduced in 2017, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.”

19. USCIS Temporarily Suspends Biometrics Requirement for Certain Nonimmigrants Changing or Extending Status – Previously, applicants had to submit requests in writing to reschedule their biometrics appointments.

20. USCIS Allows Rescheduling of Biometric Appointments by Phone – The Department of Homeland Security plans to withdraw a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

21. DOL Further Delays Effective Date of Prevailing Wage Computation Final Rule – The Department of Labor has delayed a final rule on prevailing wage computations until November 14, 2022.

22. CBP Announces Policy Change on National Interest Exceptions at Port of Atlanta – Due to a “recent necessary policy change,” U.S. Customs and Border Protection (CBP) at the Port of Atlanta will only consider processing § 212(f) national interest exception waiver requests for “urgent humanitarian reasons or those involving national security and/or law enforcement matters.”

23. Afghan Translators/Interpreters Who Helped United States Seek Visas Promised to Them – An estimated 18,000 Afghan translators/interpreters and their families who have aided the U.S. military and government with translation services await pending Special Immigrant Visas. With the September 2021 deadline looming for the United States to withdraw American troops, pleas for visas to be issued quickly have been renewed.

24. USCIS Provides Guidance on Exemption to Temporary Need Requirement for Certain H-2B Workers in Guam and Marianas – USCIS issued guidance effective immediately regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions for certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands.

25. President Biden Raises Refugee Cap to 62,500 in FY 2021 – President Joe Biden revised the United States’ annual refugee admissions cap to 62,500 for fiscal year FY 2021, with a goal of 125,000 admissions for FY 2022.

26. DHS Will Withdraw Proposed Rule on Work Authorization for Certain Persons With Final Removal Orders – The Department of Homeland Security will withdraw a proposed rule that would have revised DHS regulations to eliminate employment authorization for individuals who have final orders of removal and are released from DHS custody on an order of supervision, with a narrow exception.

27. DHS Will Withdraw Proposed Rule on Expanding Biometrics Collection, Use – The Department of Homeland Security plans to withdraw a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

28. DHS Ratifies Rule That Removes 30-Day EAD Processing Requirement – Secretary of Homeland Security Alejandro Mayorkas ratified a rule regarding applications for employment authorization documents filed by people who have applied for asylum.

29. EOIR Announces 17 New Immigration Judges – The Executive Office for Immigration Review announced 17 new Immigration Judges, including one Assistant Chief Immigration Judge and six Unit Chief Immigration Judges, and released biographical information about all of them.

30. ABIL Global: India – The Indian government has simplified the rules for renewal of Overseas Citizenship of India (OCI) cards.

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 – June 2021

1. Cap Reached for Additional Returning Worker H-2B Visas for FY 2021

Under the recently announced H-2B supplemental cap temporary final rule, U.S. Citizenship and Immigration Services (USCIS) announced on June 3, 2021, that it has received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only. USCIS continues to accept petitions for H-2B nonimmigrant workers for the additional 6,000 visas allotted for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Triangle).

USCIS said it is rejecting and returning any cap-subject petitions for H-2B returning workers (not including those filed under the Northern Triangle allotment) received after June 1, 2021, together with any accompanying filing fees.

Petitioners whose workers were not selected for the 16,000 returning worker allotment are encouraged to refile for workers from the Northern Triangle countries while visas for that allotment remain available. The final date for filing petitions requesting Northern Triangle nationals who are exempt from the returning worker requirement is July 8, 2021. If fewer than 6,000 beneficiaries are requested toward the visas set aside for nationals of the Northern Triangle countries, USCIS will announce by July 23, 2021, that the remaining visa numbers will be made available to beneficiaries regardless of nationality, subject to the returning worker limitation.

USCIS said it will continue to accept H-2B petitions for workers filing under the Northern Triangle allotment, as well as those that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States petitioning 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:

• USCIS announcement, https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021
• “Temporary Increase in H-2B Nonimmigrant Visas for FY 2021” page, USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2021
• Joint temporary final rule, https://www.govinfo.gov/content/pkg/FR-2021-05-25/pdf/2021-11048.pdf

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2. State Dept. Expands National Interest Exception Criteria for Travelers from Covid-Restricted Countries

On May 27, 2021, the Department of State expanded the National Interest Exception (NIE) criteria for individuals subject to proclamations restricting travel to the United States due to physical presence in China, Iran, India, Brazil, South Africa, the Schengen Area, the United Kingdom, and Ireland.

Categories of qualified travelers who can now apply and qualify for NIEs include those “who are seeking to provide vital support or executive direction for critical infrastructure; those traveling to provide vital support or executive direction for significant economic activity in the United States; journalists; students and certain academics covered by exchange visitor programs; immigrants; and fiancés.”

Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) may travel to the United States following the procedures summarized in the notice, which also provides information for F-1 or M-1 students and on NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Travelers requiring a visa stamp and/or NIE should review the website of the nearest U.S. embassy or consulate for further instructions specific to the post.

Details:

• State Dept. notice,

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3. DHS Terminates Migration Protection Protocols Program

Alejandro Mayorkas, Secretary of the Department of Homeland Security (DHS), announced on June 1, 2021, that he has terminated the Migration Protection Protocols (MPP) program. The Trump administration implemented the program in January 2019 with a memorandum from then-DHS Secretary Kirstjen Nielsen.

Under the program, approximately 68,000 individuals were returned to Mexico following their enrollment. According to a new memorandum, Secretary Mayorkas determined that “MPP does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.” Under MPP, certain non-Mexican applicants for admission to the United States who arrived on land at the southwest border could be returned to Mexico to await their removal proceedings. Due to public health measures necessitated by the ongoing COVID-19 pandemic, however, DHS and the Executive Office for Immigration Review (EOIR) “stopped being able to facilitate and conduct immigration court hearings for individuals enrolled in MPP beginning in March 2020,” the memo notes. DHS “has worked with interagency partners and facilitating organizations to implement a phased process for the safe and orderly entry into the United States of certain individuals who had been enrolled in MPP” following DHS’s suspension of new enrollments as of January 21, 2021.

The memo states that termination of MPP “does not impact the status of individuals who were enrolled in MPP at any stage of their proceedings before EOIR or the phased entry process” described in the memo.

Details:

• DHS memorandum, June 1, 2021, https://www.dhs.gov/sites/default/files/publications/21_0601_termination_of_mpp_program.pdf

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4. ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

The latest extension includes guidance for employees hired on or after June 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) process until they undertake non-remote employment on a “regular, consistent, or predictable basis,” or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If there are employees physically present at a work location, no exceptions are being implemented for in-person verification of identity and employment eligibility documentation.

Details:

• ICE announcement, May 26, 2021, https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-0

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5. USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals

Due to updated guidance from the Centers for Disease Control and Prevention, U.S. Citizenship and Immigration Services (USCIS) has updated its visitor policy. Fully vaccinated individuals no longer have to wear a face covering. Individuals two years old and older who are not fully vaccinated must still wear a face covering.

“Fully vaccinated” is defined as at least two weeks having passed after receiving a second dose in a two-dose series or at least two weeks having passed after receiving a dose of a single-dose vaccine.

USCIS also eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms. Those who have returned from domestic air, international air, or cruise ship travel in the past 10 days may enter USCIS facilities if they are fully vaccinated. Individuals who have been in close contact (within six feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the previous 14 days may also enter USCIS facilities if they are fully vaccinated. Healthcare workers who consistently wear an N95 respirator and proper personal protective equipment or equivalent when in contact with COVID-19-positive individuals continue to be exempt from reporting close contact, USCIS said.

In Department of Homeland Security-controlled spaces, “this guidance supersedes state, local, tribal, or territorial rules and regulations regarding face coverings,” USCIS said.

Details:

• USCIS notice, May 27, 2021, https://www.uscis.gov/news/alerts/uscis-eases-visitor-restrictions-for-fully-vaccinated-individuals

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6. DHS Designates Haiti for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Haiti for temporary protected status (TPS) for 18 months.

TPS will apply only to those individuals who are already residing in the United States as of May 21, 2021, and meet all other requirements. Those who attempt to travel to the United States after this announcement will not be eligible for TPS and may be repatriated, DHS warned. Haiti’s 18-month designation will take effect on the publication date of the Federal Register notice, to come shortly. The notice will provide instructions for applying for TPS and employment authorization documentation.

Details:

• DHS announcement, May 22, 2021, https://www.dhs.gov/news/2021/05/22/secretary-mayorkas-designates-haiti-temporary-protected-status-18-months

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7. DHS Designates Burma (Myanmar) for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Burma (Myanmar) for temporary protected status (TPS) through November 25, 2022. The designation allows an estimated 1,600 Burmese nationals (or individuals having no nationality who last habitually resided in Burma) who have been continuously residing in the United States since March 11, 2021, and continuously physically present in the United States since May 25, 2021, to file initial applications for TPS.

The 180-day initial registration period began on May 25, 2021, and runs through November 22, 2021. Applicants may also be eligible to apply for TPS-related employment authorization documents and for travel authorization.

Details:

• DHS announcement, https://www.uscis.gov/news/news-releases/dhs-announces-open-registration-for-temporary-protected-status-for-burma
• Designation of Burma (Myanmar) for Temporary Protected Status, 86 Fed. Reg. 28132 (May 25, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-25/pdf/2021-11075.pdf

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8. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From Burma (Myanmar)

On May 24, 2021, the Department of Homeland Security (DHS) announced the suspension until November 25, 2022, of certain regulatory requirements for F-1 nonimmigrant students from Burma (Myanmar) who are experiencing severe economic hardship as a result of the current crisis in Burma. The notice temporarily suspends applicable on-campus and off-campus employment regulations for eligible Burmese students who meet certain conditions.

Details:

• DHS notice, https://www.ice.gov/doclib/sevis/pdf/bcm2105-03.pdf
• Federal Register notice,

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9. Higher Education Associations Urge Biden Administration to Take Action to Allow International Students to Return to Campus In Time for Fall Semester

The American Council on Education (ACE) and a group of higher education associations sent a letter to Secretary of State Antony Blinken and Secretary of Homeland Security Alejandro Mayorkas urging them to take immediate action to allow international students to return to their campuses and institutions in the fall semester. “Given the processing time for visas, we believe there are actions that need to be taken now to allow enough time for processing and for international students to make plans to travel to the United States safely.” The associations ask for timely and efficient processing of visa applications and work authorizations, including optional practical training, among other measures.

NAFSA: Association of International Educators, sent a separate letter to Secretary Blinken, noting among other things that over the past four years, the United States “lost international students to competitors like Canada, Australia, and even China.”

The ACE letter notes a 43 percent decline in new international student enrollment at U.S. institutions during the COVID-19 pandemic, and a decline in the overall economic impact generated by international students of $1.8 billion during the 2019-2020 academic year from $40.5 billion in the prior year. There were approximately 1.1 million international students in the United States in the 2019-2020 academic year.

Details:

• ACE letter, https://www.acenet.edu/Documents/Letter-State-DHS-Fall-2021-031821.pdf
• NAFSA letter, https://www.nafsa.org/sites/default/files/media/document/NAFSAtoSecretaryBlinken.pdf
• “Colleges Beg Biden to Save International Student Enrollment,” Politico, May 29, 2021, https://www.politico.com/news/2021/05/29/colleges-biden-visas-international-students-491346

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10. CBP Continues Temporary Travel Restrictions From Canada, Mexico Into United States Via Land POEs and Ferries

The Department of Homeland Security (DHS) announced that temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through June 21, 2021. The restrictions only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined in the notice.

Details:

• Federal Register notice (Canada), https://www.govinfo.gov/content/pkg/FR-2021-05-24/pdf/2021-10991.pdf
• Federal Register notice (Mexico), https://www.govinfo.gov/content/pkg/FR-2021-05-24/pdf/2021-10992.pdf

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11. Round Table of Former Immigration Judges Asks Attorney General to Review, Rescind Trump Administration Decisions

The Round Table of Former Immigration Judges (RTFIJ), a group of 40 former immigration judges and appellate-level judges of the Board of Immigration Appeals, sent a letter on May 25, 2021, asking Attorney General Merrick Garland to “review and rescind many, if not all, of the decisions that former Attorneys General Sessions, Whitaker, Barr, and Rosen certified to themselves.” RTFIJ said that the “vast majority of those decisions overturned decades of substantive and procedural immigration law and policy and are antithetical to an unbiased and independent immigration court system.”

RTFIJ singled out 17 cases divided into three general categories: (1) decisions regarding the authority of Immigration Judges to control and manage their own dockets; (2) decisions involving the intersection of criminal and immigration laws; and (3) decisions that significantly contract substantive asylum laws. RTFIJ said it is especially concerned about the first and third categories, which “have turned the Immigration Courts into nothing more than cogs in the deportation machine, and Immigration Judges into prosecutors instead of fair and impartial adjudicators.” RTFIJ noted that instead of ensuring the issuance of more orders of removal, the Department of Homeland Security “succeeded only in increasing the case backlog exponentially while reducing the overall case completion rate.”

Details:

• RTFIJ letter, May 25, 2021, https://immigrationcourtside.com/wp-content/uploads/2021/05/AG-Garland-letter-Precedents-FInal.pdf

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12. DHS, DOJ Announce New Dedicated Docket Process for Immigration Hearings

The Departments of Homeland Security (DHS) and Justice (DOJ) announced on May 28, 2021, a new “Dedicated Docket” process intended to “significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border.”

The effort is focused on families arriving between ports of entry at the southwest border and aims to have an immigration judge issue a decision within 300 days of the initial master calendar hearing, subject to the unique circumstances of each case.

Details:

• DOJ announcement, May 28, 2021, https://www.justice.gov/opa/pr/dhs-and-doj-announce-dedicated-docket-process-more-efficient-immigration-hearings

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13. DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap

The Departments of Homeland Security (DHS) and Labor (DOL) published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year (FY) 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for workers from Honduras, El Salvador, and Guatemala (Northern Triangle).

The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.

USCIS Acting Director Tracy L. Renaud said that the rule “requires that employers take additional steps to recruit U.S. workers, and provides for ‘portability,’ which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved.” She noted that portability enables H-2B workers to “change employers more quickly if they encounter unsafe or abusive working conditions.” She said DHS and DOL “will conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”

Starting May 25, 2021, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate that their business is likely to suffer irreparable harm without a supplemental workforce.

Details:

• “U.S. Departments of Homeland Security and Labor Issue Joint Rule Supplementing H-2B Visa Cap,” May 21, 2021, https://www.uscis.gov/news/news-releases/us-departments-of-homeland-security-and-labor-issue-joint-rule-supplementing-h-2b-visa-cap

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14. DHS Issues Final Rule to Remove Vacated H-1B Rule

The Department of Homeland Security issued a final rule, effective May 19, 2021, that removes an interim final rule issued in October 2020 and later vacated by a federal district court, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” The interim final rule made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.

The final rule removes from the Code of Federal Regulations the regulatory text that DHS promulgated in the October 2020 interim final rule and restores the regulatory text to appear as it did before.

Details:

• Final rule, DHS, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10489.pdf
• Vacated interim final rule, October 8, 2020, https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22347.pdf

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15. USCIS Extended SAVE Records Download Deadline

The Systematic Alien Verification for Entitlements (SAVE) program announced that U.S. Citizenship and Immigration Services extended the deadline to June 4, 2021, for SAVE users to download older case information before USCIS disposed of it. This applied to SAVE records that were more than 10 years old (those dated on or before December 31, 2010).

The downloadable Historic Records Report “provides data about each SAVE case that is more than 10 years old and slated for deletion in accordance with the governing National Archives and Records Administration (NARA) Retention and Disposal schedule,” SAVE explained. The data includes basic SAVE verification case information. The report is available annually to SAVE Super Users for about 90 days to allow user agencies to download and retain information about these cases before their deletion.

Details:

• “SAVE Instructions to Download Historic Records Report Tip Sheet,” https://www.uscis.gov/sites/default/files/document/guides/Instructions_to_Download_NARA_Reports_in_SAVE.pdf

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16. ETA Proposes Revision to CW-1 Application for Temporary Employment Certification in Marianas

The Department of Labor’s Employment and Training Administration (ETA) proposes to amend Form ETA-9141C, Application for Prevailing Wage Determination, and its instructions, “to make sure this form, which is specific to the CW-1 program, conforms to the information collected through the general Form ETA-9141, Application for Prevailing Wage Determination (Form ETA-9141C),” used by employers in connection with prevailing wage requests for other labor certification application programs and for labor condition applications. The information collected through the form remains unchanged.

The CW-1 nonimmigrant visa program permits employers who meet program requirements to hire nonimmigrant workers temporarily in the Commonwealth of the Northern Mariana Islands to perform services or labor based on the employer’s need.

The notice informs the public of the Department’s request to seek an extension of the validity of this information collection while also revising the Form-9141C, and its instructions, and invites comments from the public for 60 days. The deadline for comments is July 19, 2021.

Details:

• Office of Foreign Labor Certification notice, May 19, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Federal Register notice, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10529.pdf
• Supporting statement,

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17. State Dept. Announces Updated Interpretation of Acquisition of Citizenship at Birth

The Department of State announced on May 18, 2021, an update in its interpretation and application of the requirements for acquisition of U.S. citizenship at birth in light of advances in assisted reproductive technology. Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, “will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the [Immigration and Nationality Act’s] other requirements.” Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent. Requirements for children born to unmarried parents remain unchanged.

Details:

• S. Citizenship Transmission and Assisted Reproductive Technology,” May 18, 2021, https://www.state.gov/u-s-citizenship-transmission-and-assisted-reproductive-technology/

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18. DHS Announces Continuation of International Entrepreneur Program

U.S. Citizenship and Immigration Services (USCIS) announced on May 10, 2021, that the Department of Homeland Security (DHS) is withdrawing a 2018 proposed rule that would have removed the International Entrepreneur parole program from DHS regulations. USCIS said the program, first introduced in 2017, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.”

Under the program, parole may be granted for up to three entrepreneurs per start-up entity, as well as their spouses and children. Entrepreneurs granted parole are eligible to work only for their start-up business. Their spouses may apply for employment authorization in the United States, but their children are not eligible for such authorization based on the program. An applicant must file Form I-941, Application for Entrepreneur Parole, with the required fees (including biometric) and supporting documentary evidence. The fees are $1,200 for filing the
I-941 and $85 for biometrics. Additional forms and fees are required for spouses and children.

Details:

• USCIS/DHS announcement, May 10, 2021, https://www.uscis.gov/news/news-releases/dhs-announces-continuation-of-international-entrepreneur-parole-program
• USCIS International Entrepreneur Parole page, which includes details on eligibility requirements, filing procedures, and links to forms, is at https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole

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19. USCIS Temporarily Suspends Biometrics Requirement for Certain Nonimmigrants Changing or Extending Status

Effective May 17, 2021, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend the biometrics submission requirement for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, and E nonimmigrant status. USCIS will allow adjudications for those specific categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director, the agency said.

This temporary suspension will apply to applicants filing Form I-539 requesting:

• Extension of stay in or change of status to H-4, L-2, or E-1 nonimmigrant status;
• Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor)); or
• Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D).

This suspension will apply only to the above categories of Form I-539 applications that are either:

• Pending as of May 17, 2021, and have not yet received a biometric services appointment notice; or
• New applications postmarked or submitted electronically on or after May 17, 2021.

USCIS noted that it retains discretion on a case-by-case basis to require biometrics for applicants who meet the criteria above, and any applicant may be scheduled for an Application Support Center (ASC) appointment to submit biometrics.

Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment, USCIS said.

Effective May 17, 2021, Form I-539 applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. USCIS will allow a short grace period during which USCIS will not reject Form I-539 filed with the biometric services fee. USCIS will begin rejecting paper Form I-539 applications postmarked May 27, 2021, or later (while this suspension of the biometrics requirement is in effect), if applicants meeting the above criteria submit a single payment covering both the filing fee and the $85 biometrics services fee. If USCIS rejects the paper application because the applicant included the $85 biometrics service fee after the grace period, the applicant will need to re-file Form I-539 without the biometric services fee.

Details:

• Proposed rule, withdrawal (prepublication copy),
• “USCIS Will Suspend Trump-Era Biometric Screening Rule for Work-Permit Applicants,” Reuters, May 4, 2021, https://www.reuters.com/business/legal/uscis-will-suspend-trump-era-biometric-screening-rule-work-permit-applicants-2021-05-04/

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20. USCIS Allows Rescheduling of Biometric Appointments by Phone

U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2021, that applicants, petitioners, requestors, and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center. Previously, applicants had to submit requests in writing to reschedule their biometrics appointments.

USCIS said that applicants must establish “good cause” for rescheduling and must call before the date and time of their original appointment to reschedule. If an applicant fails to call before the scheduled appointment or to establish good cause, “USCIS may consider the application, petition, or request abandoned and, as a result, it may be denied.”

Details:

• “Rescheduling Biometric Services Appointments by Phone,” USCIS, May 11, 2021, https://www.uscis.gov/news/alerts/rescheduling-biometric-services-appointments-by-phone

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21. DOL Further Delays Effective Date of Prevailing Wage Computation Final Rule

The Department of Labor has delayed a final rule on prevailing wage computations from May 14, 2021, until November 14, 2022.

The latest action includes corresponding delays in the rule’s transition dates until January 1, 2023, January 1, 2024, January 1, 2025, and January 1, 2026, respectively. For most job opportunities, the transition would occur in two steps. For job opportunities that will be filled by workers who are the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or are eligible for an extension of their H–1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, (2002), the transition would occur in four steps.

Details:

• Final rule; delay of effective and transition dates, Dept. of Labor, 86 Fed. Reg. 26164 (May 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-13/pdf/2021-10084.pdf

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22. CBP Announces Policy Change on National Interest Exceptions at Port of Atlanta

Due to a “recent necessary policy change,” effective May 14, 2021, U.S. Customs and Border Protection (CBP) at the Port of Atlanta will only consider processing § 212(f) national interest exception (NIE) waiver requests for “urgent humanitarian reasons or those involving national security and/or law enforcement matters.” All other requests, including any requests currently pending with CBP Atlanta, “will need to be processed by the U.S. Embassy or Consulate,” CBP said.

On April 26, 2021, the Secretary of State made a national interest determination regarding categories of travelers to be excepted from Presidential Proclamations (PPs) 9984, 9992, and 10143 related to the spread of COVID-19.  As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations, due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are seeking to provide vital support for critical infrastructure; journalists; and students and certain academics covered by exchange visitor programs, among others, may now qualify for a National Interest Exception (NIE).

Details:

• “National Interest Exceptions for Certain Travelers from China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland,” Dept. of State, May13, 2021,

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23. Afghan Translators/Interpreters Who Helped United States Seek Visas Promised to Them

An estimated 18,000 Afghan translators/interpreters and their families who have aided the U.S. military and government with translation services await pending Special Immigrant Visas. With the September 2021 deadline looming for the United States to withdraw American troops, pleas for visas to be issued quickly have been renewed.

Many such Afghans fear for their lives. The Lutheran Immigration and Refugee Service (LIRS) wrote to President Biden to urge him to “evacuate Afghan wartime allies who have already applied for the Special Immigrant Visa [SIV] program and their families to American territory.” According to LIRS, “[s]ince 2002, the U.S. government has employed Afghan allies to serve alongside U.S. troops, diplomats, and other government employees as translators, interpreters, cultural advisors, or support staff.” In recognition of the peril they face, LIRS noted, Congress enacted the Afghan SIV program in 2009 and “mandated that visa applications be processed within nine months.” The American Legion has also pleaded their case to the Biden administration and Congress.

Details:

• “Family of Slain Afghan U.S. Military Interpreter Headed to Houston After 10-Year Visa Delay,” Houston Public Media, May 14, 2021, https://www.houstonpublicmedia.org/articles/news/politics/immigration/2021/05/14/398056/family-of-slain-afghan-u-s-military-interpreter-headed-to-houston-after-10-year-visa-delay/
• “Thousands of Afghans and Iraqis Are Under Threat for Helping Americans. Now They Hope Biden Will Help Them Resettle in the United States,” Washington Post, Dec. 30, 2020, https://www.washingtonpost.com/politics/biden-refugees-visas/2020/12/30/572c00fc-3e4f-11eb-9453-fc36ba051781_story.html
• S. Veterans Scramble to Help Interpreters Left Behind,” American Legion, Apr. 29, 2021, https://www.legion.org/security/252361/us-veterans-scramble-help-interpreters-left-behind
• “Review of the Afghan Special Immigrant Visa Program,” Office of Inspector General, Dept. of State, June 2020, https://www.oversight.gov/sites/default/files/oig-reports/AUD-MERO-20-35.pdf
• “Recommendations to Provide Humanitarian Protections for Certain Afghan Civilians,” LIRS, May 12, 2021, https://www.lirs.org/wp-content/uploads/2021/05/LIRS-Letter-Requesting-Humanitarian-Protections-for-Certain-Afghan-Civilians_12-MAY-2021.pdf

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24. USCIS Provides Guidance on Exemption to Temporary Need Requirement for Certain H-2B Workers in Guam and Marianas

U.S. Citizenship and Immigration Services (USCIS) issued guidance on May 13, 2021, effective immediately, regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions for certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands. Specifically, the guidance notes that the National Defense Authorization Act for fiscal year 2021 (FY 2021 NDAA) provides that an H-2B employer who qualifies under certain parameters is not required to demonstrate that the service or labor is temporary in nature if the employment start date is before December 31, 2023. Included are employers with contracts or subcontracts that are “supporting” or “adversely affected by” the military realignment, in addition to those that are “associated with” or “directly connected to” it. The FY 2021 NDAA states that priority will be given to federally funded military projects. “Adversely affected by” includes but is not limited to projects for which the military realignment “has caused a loss of business income or a negative impact on the availability of necessary labor or resources that is not purely speculative (that is, based on assertions with no documentation to support the claim.”

The exemption may be granted for certain contracts or subcontracts for labor or services required for performance of a contract or subcontract for construction, repairs, renovations, or facility services, “provided they have a non-speculative supporting relationship to, association with, are adversely affected by, or have a direct connection to the military realignment.”

Details:

• USCIS Policy Alert PA-2021-06, May 13, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210513-H2BNDAA.pdf

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25. President Biden Raises Refugee Cap to 62,500 in FY 2021

President Joe Biden revised the United States’ annual refugee admissions cap to 62,500 for fiscal year (FY) 2021, with a goal of 125,000 admissions for FY 2022. The announcement followed criticism after he announced plans to keep the number of refugee admissions at 15,000 this fiscal year primarily because of logistical concerns.

President Biden said that the “sad truth is that we will not achieve 62,500 admissions this year. We are working quickly to undo the damage of the last four years.” He said that “we are going to rebuild what has been broken and push hard to complete the rigorous screening process for those refugees already in the pipeline for admission.”

Details:

• “Statement by President Joe Biden on Refugee Admissions,” White House, May 3, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/03/statement-by-president-joe-biden-on-refugee-admissions/
• “Biden, in Reversal, Raises the Refugee Admission Cap to 62,500 in the Next Six Months,” New York Times, May 3, 2021, https://www.nytimes.com/2021/05/04/us/politics/biden-refugee-numbers.html

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26. DHS Will Withdraw Proposed Rule on Work Authorization for Certain Persons With Final Removal Orders

On May 10, 2021, the Department of Homeland Security (DHS) will withdraw a proposed rule published on November 19, 2020, that would have revised DHS regulations to eliminate employment authorization for individuals who have final orders of removal and are released from DHS custody on an order of supervision, with a narrow exception.

DHS noted that it received more than 302 comments in response to the proposed rule, nearly 98 percent of which were in opposition. Commenters who opposed the rule argued that it “would significantly limit the ability of individuals who have a final order of removal and are released on an order of supervision to legally work, be self-sufficient, and support their families, which may include U.S. citizen children and lawful permanent resident spouses or partners. Several commenters also noted the proposed rule would impose exorbitant costs and burdens on U.S. employers related to labor turnover and the proposed E-Verify requirement,” DHS said. Also, various state and local agencies, including Attorneys General from 15 states, opposed the rule on the basis that “it would decrease tax revenue, deny states various revenue streams, and increase costs related to state-funded public benefit programs.” Many commenters also disagreed with the proposed rule’s assertion that the proposed changes would incentivize individuals with final orders of removal to leave the United States.

DHS said it decided to withdraw the proposed rule because the original bases and rationale “no longer align with the [Biden administration’s] immigration enforcement priorities.” Withdrawing the proposed rule, DHS said, will allow covered individuals “to continue to work for American businesses that provide services in key industries and to supplement the existing U.S. workforce.”

Details:

• Proposed rule, withdrawal (prepublication copy),
• USCIS announcement, https://www.uscis.gov/news/alerts/dhs-withdraws-proposed-biometrics-rule

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27. DHS Will Withdraw Proposed Rule on Expanding Biometrics Collection, Use

On May 10, 2021, the Department of Homeland Security (DHS) plans to withdraw a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

The proposed rule called for providing DHS with flexibility to change its biometrics collection practices and policies as needed. Included were expanding the use of biometrics beyond background checks and document production to include identity verification and management in the immigration lifecycle, enhancing vetting to prove identity and familial relationships, precluding imposters, and improving consistency in biometrics terminology.

DHS said it still supports some of these goals but “not in a way that conflicts” with Executive Order, 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which instructs the Secretary of Homeland Security to identify barriers impeding access to immigration benefits.

In response to the notice of proposed rulemaking published on September 11, 2020, DHS received more than 5,000 comments, most of them in opposition. Commenters mentioned immigration policy, privacy, and economic concerns, and said the rule was “unnecessary, offensive, an invasion of privacy, would infringe on freedoms, and [would] violate the respect, privacy rights, and civil liberties of U.S citizens, legal immigrants, noncitizens, victims of domestic violence, other vulnerable parties, and children.” Many commenters also said the rule was “overly broad, highly invasive, and would impose excessive monetary costs on applicants and result in administration delays,” DHS said.

DHS said it will analyze the entirety of the proposed rule in the context of the directive in EO 14012 and consider what changes may be appropriate. In the meantime, DHS will maintain its current biometrics collection practices and policies.

Details:

• Proposed rule, withdrawal (prepublication copy),
• “USCIS Will Suspend Trump-Era Biometric Screening Rule for Work-Permit Applicants,” Reuters, May 4, 2021, https://www.reuters.com/business/legal/uscis-will-suspend-trump-era-biometric-screening-rule-work-permit-applicants-2021-05-04/

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28. DHS Ratifies Rule That Removes 30-Day EAD Processing Requirement

On May 7, 2021, Secretary of Homeland Security Alejandro Mayorkas ratified a rule regarding applications for employment authorization documents (EADs) filed by people who have applied for asylum.

The Department of Homeland Security (DHS) said that although the promulgation of the rule and its ratification “were necessary and justified due to operational realities, Secretary Mayorkas recognizes that work authorization is crucially important to people requesting asylum and reaffirms [DHS’s] commitment to adjudicate applications as quickly and efficiently as possible.” The Department said it “plans to engage in future rulemaking to advance this important interest.”

Details:

• “DHS Ratifies Rule That Removes 30-Day EAD Processing Requirement and Acknowledges Importance of Issuing Timely Work Authorizations,” Dept. of Homeland Security, May 7, 2021, https://www.dhs.gov/news/2021/05/07/dhs-ratifies-rule-removes-30-day-ead-processing-requirement

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29. EOIR Announces 17 New Immigration Judges

The Executive Office for Immigration Review (EOIR) announced 17 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ) and six Unit Chief Immigration Judges (UCIJs).

Attorney General Merrick B. Garland appointed Megan B. Herndon, Wade T. Napier, Tamaira Rivera, David H. Robertson, Elizabeth Crites, Bryan E. DePowell, Nicholle M. Hempel, Kathy J. Lemke, Martinque M. Parker, David M. Paxton, Bryan D. Watson, Kenya L. Wells, and Mark R. Whitworth to their new positions; former Acting Attorney General Monty Wilkinson appointed Adam Perl to his new position; former Acting Attorney General Jeffrey A. Rosen appointed William H. McDermott to his new position; and former Attorney General William P. Barr appointed Elliot M. Kaplan and Jeb T. Terrien to their new positions.

Details:

• “EOIR Announces 17 New Immigration Judges,” Executive Office for Immigration Review, May 6, 2021 (includes biographical information), https://www.justice.gov/eoir/file/1392116/download

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30. ABIL Global: India

The Indian government has simplified the rules for renewal of OCI cards.

The Overseas Citizenship of India (OCI) card is popular among foreign nationals who are of Indian origin and spouses of foreign origin of Indian citizens. The card provides for hassle-free entry and unlimited stay in India.

According to news reports, the Ministry of Home Affairs has simplified the rules regarding renewals. OCI cardholders are no longer required to have their OCI cards reissued each time they obtain a new passport.

Previously, it was mandatory for OCI cards to be re-issued each time a cardholder 20 years of age or younger obtained a new passport, and also at least once after the cardholder obtained a passport after the age of 50. Although the Indian government never enforced this rule consistently and permitted entry to OCIs even if they had not renewed the card, many OCIs frequently faced issues at foreign airports before traveling to India if they had not renewed the OCI card after being issued a new passport. Different airlines interpreted these rules inconsistently.

The new guidance is summarized as follows:

• Card issued before holder turned 20. Those with OCI cards issued before the cardholder turned 20 years old only need to obtain a reissued OCI card once when they obtain a new passport after reaching 20 years of age.
• Card issued after holder turned 20. OCI cardholders who obtained their OCI card after they turned 20 years of age no longer need to obtain a re-issued OCI card and can continue to use their existing card.
• New passport obtained after holder turns 50. OCI cardholders who obtain new passports after the age of 50 are no longer required to have their OCI card reissued.
• New government notification requirements.

• OCI cardholders 20 years of age or younger must upload copies of their new passports with recent passport-size photographs to the OCI online portal each time a new passport is issued, and once after reaching 50 years of age.
• OCI cardholders married to Indian citizens or other OCI cardholders who obtain a new passport must upload a copy of their passport with a recent photograph and a declaration that they are still married.
• Updated documents and photographs may be uploaded by OCI cardholders within three months of receipt of the new passport.
• Travel restrictions. There are no travel restrictions from the date the new passport is issued until new details are recorded on the OCI portal.

The Indian government has yet to post instructions on updating documents and photographs under the relaxed guidance.

Details:

• “Government Simplifies Renewal of OCI Cards,” NDTV, Apr. 16, 2021,

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New Publications and Items of Interest

Training webinar on Labor Dept. e-filing. The Department of Labor announced a training webinar to be held June 23, 2021, on e-filing. Topics will include understanding the dashboard and case details page, how to file cases, receiving served documents, and other issues. https://efile.dol.gov/announcements/efs-webinars-apr-may-june-2021 Webinar on international entrepreneur parole program. USCIS invites stakeholders to a webinar on June 16, 2021, from 2 to 3 p.m. ET, on the international entrepreneur parole program. The webinar will provide an overview of the criteria for consideration for parole, details on how to file, and answers to questions, which should be emailed by June 2 to [email protected]. To register, go to https://public.govdelivery.com/accounts/USDHSCISINVITE/subscriber/new?topic_id=USDHSCISINVITE_408 Immigrant and Employee Rights Section webinars. The Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division is offering free webinars for the public. There are webinars for workers, employers, and advocates. https://www.justice.gov/crt/webinars 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

• Coronavirus.gov: Primary federal site for general coronavirus information
• USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
• CDC.gov/coronavirus: Centers for Disease Control and Prevention information

• American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
• NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

• https://www.dhs.gov/coronavirus-news-updates
• https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

• USCIS: USCIS.gov/coronavirus
• ICE:

• Overview and FAQs: https://www.ice.gov/coronavirus
• Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
  pdf

• CBP:

• Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
• Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

• Office of Foreign Labor Certification:

• OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
• COVID-19 FAQs:
  • Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
  • Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
  • Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

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

• Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
• Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
• J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

• Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Dorothee Mitchell, an attorney and partner at Foster LLP, was named new Honorary Consul of the Federal Republic of Germany in Austin, Texas. Ms. Mitchell was inaugurated by Consul General Thomas Meister at a ceremony on May 11, 2021. Ms. Mitchell is licensed to practice law in both the United States and in Germany. She is a native German speaker with fluency in English, and is a dual German-U.S. citizen with extensive German and U.S. legal experience. She has lived in Austin, Texas, for the past 15 years and is well-connected in the German community in Austin. https://www.germany.info/us-en/embassy-consulates/gkhoustonen/-/2458662

Jeff Joseph, of Joseph & Hall, PC; Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm); and Greg Siskind, of Siskind Susser, PC, along with the American Immigration Lawyers Association and several other nonprofit organizations, filed a federal lawsuit challenging a rule that would prioritize H-1B visas based on wage levels. Among other things, the plaintiffs argue that the rule would “have a deleterious impact on small business, start-ups, non-profits, rurally located business and other industries that rely on foreign highly skilled workers, but who are not able to compensate workers at the highest wage level.” According to reports, the lawsuit also notes that Chad Wolf, who reviewed and approved the final rule, was not properly appointed as Acting Secretary of Homeland Security and thus lacked the authority to promulgate the rule. https://timesofindia.indiatimes.com/world/us/lawsuit-against-biden-admin-challenges-proposed-allocation-of-h-1b-visas-based-on-wages/articleshow/82733895.cms

Klasko Immigration Law Partners, LLP, has posted the latest episode in its “Statutes of Liberty” series: “The International Entrepreneur Rule is Back!” (Episode 25)

Klasko Immigration Law Partners, LLP, has released the third and final episode in a three-part series about problems in the EB-5 investor program. This episode covers litigation options

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has authored several new blog posts: “State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad is Welcome and Consistent With Federal Court Decisions,” http://blog.cyrusmehta.com/2021/06/3440.html; “Proposals for Shattering Barriers and Obstacles to Legal Immigration Without Waiting for Congress to Act.” http://blog.cyrusmehta.com/2021/05/proposals-for-shattering-barriers-and-obstacles-to-legal-immigration-without-waiting-for-congress-to-act.html

Mr. Mehta co-authored a new blog post: “U.S. Imposes Covid Travel Ban on India: How Effective Are Such Travel Bans?” http://blog.cyrusmehta.com/2021/05/us-imposes-covid-travel-ban-on-india-how-effective-are-such-travel-bans.html

Mr. Mehta was quoted extensively by the Times of India in “U.S. Immigration Reforms: Stop Counting Family Members to Mitigate Green Card Backlogs, Says Cyrus Mehta, Immigration Attorney.” The article reported on his recommendations to overcome barriers to legal immigration. https://bit.ly/3fAGjNd

Mr. Mehta was quoted in several articles about H-1B temporary workers who traveled to India to look after their Covid-stricken parents and are now stranded there:

• “They Went Back to India to Care for Parents Dying of COVID-19. Now, They’re Stranded,” Mother Jones, May 6, 2021. Mr. Mehta said that the ban on travel from India isn’t very useful in stopping the spread of the virus since citizens, permanent residents, and others are still allowed to travel. But the ban disproportionately affects those who are working on temporary visas such as the H-1B visa. “Representing H1B visa holders, I know what they’ve gone through. Each time they go to India, there’s a ban imposed on them. In the Trump administration, they were subject to bans. Then they wait patiently. They’ve now scheduled a visa appointment. And their appointment for later this week has been cancelled because of this latest COVID ban on India. So they’ve got a double whammy.” He suggested stricter controls and protocols such as rigorous testing, quarantining, and vaccination requirements as a better approach to controlling the spread of the virus, the article noted. https://bit.ly/3w9BhN4
• “As U.S. Travel Ban Kicks In, Families Are Sundered and Plans Are Disrupted,” Times of India, May 5, 2021. Instead of banning nonimmigrant professionals from India, who may have been vaccinated or tested negative for the virus, while allowing in students, green card holders, and citizens from around the world who may be carrying the virus, “[i]sn’t it better to ensure that travelers to [the United States] are vaccinated and/or test negative and quarantine?” he said. Mr. Mehta added that the ban is disproportionately affecting professionals from India and the virus “does not know the difference” between citizens and nonimmigrants. https://bit.ly/2QqKGRq

Mr. Mehta spoke on “Australian Gold Rush or Cave In? Navigating the Minefield of Dual Representation in Family-Based Immigration” at the 2021 Annual Conference of the American Immigration Lawyers Association’s Asia-Pacific Chapter (APAC) on May 10, 2021.

Several ABIL members/firms submitted comments in response to the Biden administration’s invitation to suggest ways to overcome barriers to legal immigration:

• Mehta, https://www.regulations.gov/comment/USCIS-2021-0004-6585
• Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm), https://www.regulations.gov/comment/USCIS-2021-0004-7288
• Siskind, https://www.regulations.gov/comment/USCIS-2021-0004-5933

Mr. Paparelli; Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US), and Nicolai Hinrichsen, a partner at Miller Mayer, LLP; and Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) and Vivian Zhu, a partner at Wolfsdorf Rosenthal LLP, were listed in the 2021 edition of EB5 Investors Magazine‘s awards issue. https://www.eb5investors.com/magazine/article/eb5-top25-attorneys-immigration-attorneys

Mr. Siskind was quoted by the New York Times in “They Live in the U.S., But They’re Not Allowed to Come Home.” Mr. Siskind said that the Biden administration “just put the same blanket ban for India that they were using in the Trump administration. He is suing the administration over the Department of State’s inability to issue visas in countries experiencing lockdowns. “This was the same style ban that President Biden said last March was ineffective and was a bad idea.” https://www.nytimes.com/2021/05/17/us/politics/india-travel-restrictions.html

Wolfsdorf Rosenthal LLP published a new blog post: “HR is Driving the Economy With Foreign-Born Talent”; “Biden’s Actions on Immigration Enforcement Have Been Inconsistent Since Taking Office”; “Do H-1B Workers Displace American Workers? It’s Not a Zero-Sum Game”; and “DHS to Withdraw Trump Opposition to International Entrepreneur Parole Rule.” https://wolfsdorf.com/news/

Mr. Yale-Loehr was quoted by Brasil de Fato in “American Dream, International Nightmare: Immigration to the USA.” He said, “The last time we reformed immigration rules was in 1996, so for 25 years we’ve seen mismanagement of resources and a Congress acting under outdated laws.” Mr. Yale-Loehr also said that “every administration has a lot of power to interpret these laws more rigidly or lightly. [Former President] Trump interpreted it harshly, while [President] Biden promises to adopt more serenity. Part of this complexity reflects the scale of the challenge of creating a series of general regulations that affect millions of people, from those who want to come to the U.S. for a short period, as tourists, to those who want to come as students, who flee some kind of persecution, or who want to naturalize themselves as American citizens.” https://www.brasildefato.com.br/2021/06/03/sonho-americano-pesadelo-internacional-a-imigracao-aos-eua (Portuguese with English translation available)

Mr. Yale-Loehr co-wrote an article, “Using Existing Immigration Categories Creatively to Support Immigrant Entrepreneurs.” https://millermayer.com/2016/visa-options-immigrant-entrepreneurs/

Mr. Yale-Loehr supervised a case in Cornell Law School’s Asylum Clinic recently. An article about the case, “Asylum Clinic Wins Release for Cuban Doctor Detained by ICE,” was published in the Cornell Chronicle on June 1, 2021. https://news.cornell.edu/stories/2021/06/asylum-clinic-wins-release-cuban-doctor-detained-ice

Mr. Yale-Loehr was quoted by Univision in “Biden Moves Forward With His Plan to Eliminate ‘Zero Tolerance’ and Expand Legal Migration.” He said, “The administrative reforms proposed by the Biden administration are a good first step, but they will take time to implement and will be challenged in court. In addition, Republicans will use immigration against Biden in the 2022 midterm elections. Finally, the next president could undo any administrative reform.” https://www.univision.com/noticias/inmigracion/politica-migratoria-biden-se-basa-desaparecer-tolerancia-cero-trump (Spanish with English translation available)

Mr. Yale-Loehr was interviewed in a podcast, Immigration Nerds. https://player.captivate.fm/episode/c8dc09d2-b41e-492e-9d29-5aef3bb99d54

Mr. Yale-Loehr co-authored an article with Leon Rodriguez (partner at Seyfarth Shaw LLP and former USCIS Director) and others called “Unleashing International Entrepreneurs to Help the U.S. Economy Recover from the Pandemic.” The article, published by the Brookings Institution, recommends several ways to make it easier for international entrepreneurs to work in the United States and build or grow new companies. https://www.brookings.edu/research/unleashing-international-entrepreneurs-to-help-the-u-s-economy-recover-from-the-pandemic/

Mr. Yale-Loehr authored an op-ed for The Hill that was mentioned in a Forbes article, “What International Students and U.S. Universities Need to Know.” Forbes article: https://www.forbes.com/sites/stuartanderson/2021/05/03/what-international-students-and-us-universities-need-to-know/?sh=5ef5033c79d2; Hill op-ed: “Biden Brings Hope for International Students,” https://thehill.com/opinion/immigration/550110-biden-brings-hope-for-international-students

Mr. Yale-Loehr co-authored an article in the New England Journal of Medicine about a Cornell University asylum clinic client, Dr. Merlys Rodriguez Hernandez, who was in immigration detention while seeking asylum during the Covid-19 pandemic. She is now released on bond but still fighting deportation. The article, “Graphic Perspective: Detained,” is accessible to nonsubscribers with site registration. https://www.nejm.org/doi/full/10.1056/NEJMp2032690

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Government Agency Links

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

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

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. Bipartisan Bill Introduced in Senate Would Provide Up to 40,000 Unused Immigrant Visas for Doctors, Nurses – The Healthcare Workforce Resilience Act would provide unused employment-based immigrant visas for up to 25,000 foreign nurses and 15,000 foreign physicians and their family members.

2. USCIS Completes Initial FY 2022 H-1B Cap Season Selections; Petitions May Be Filed Now – The agency notified all prospective petitioners with selected registrations that they are eligible to file H-1B cap-subject petitions for the named beneficiaries. The filing period for petitions began on April 1, 2021.

3. DHS Extends I-9 Requirement Flexibility Until May 31, 2021 – DHS announced an extension until May 31, 2021, of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing COVID-19 pandemic precautions.

4. “Blank Space” Criteria Eliminated for Rejection of Forms – USCIS has eliminated “blank space” form rejection criteria introduced in 2019 and reverted to the criteria it applied before October 2019.

5. ICE Announces New SEVIS Process for Cap-Gap Extensions – The Student and Exchange Visitor Program updated the Student and Exchange Visitor Information System (SEVIS) to remove the cap-gap extension link. SEVIS will automatically add the cap-gap extension to the record of an eligible F-1 student who is a beneficiary of a pending cap-subject H-1B petition.

6. State Dept. Issues Update on Suspension of Entry for Certain Nonimmigrants – Applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing “phased resumption of visa services” guidance. Visa applicants who were previously refused visas due to the restrictions “may reapply by submitting a new application including a new fee.”

7. EOIR Implements Revised Case Flow Processing Model for Certain Non-Detained Cases – The Executive Office for Immigration Review issued a revised case flow processing model and canceled a policy memorandum issued in November 2020 that implemented a new model generally applying to removal cases involving non-detained respondents with representation.

8. Labor Dept. Solicits Comments on O*NET Data Collection Authority – The database “provides the most comprehensive standardized source of occupational and skills information in the nation,” the Department said.

9. Maryland Governor Asks for Elimination of Lottery System and More H-2B Visas to Help Seafood Industry, Others – Gov. Hogan said that H-2B workers are “essential” and “vital to Maryland’s seafood industry and market, which has grown to include regional, national, and international reach.”

10. USCIS to Reopen Naturalization Application and Visa Approval for Melania Trump – USCIS announced on April 1, 2021, that it plans to reopen Melania Trump’s naturalization application and “Einstein” EB-1 visa petition approval based on new information that there was not good and sufficient cause to approve the petition.

11. Class Action Filed Against DHS for L-2 and H-4 Processing Delays – The American Immigration Lawyers Association and Wasden Banias, LLP, filed a class action lawsuit challenging processing delays on extensions of status and employment authorization documents for H-4 and L-2 nonimmigrant spouses.

12. USCIS Extends Flexibilities for Responding to Agency Requests – USCIS will consider a response to certain requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

13. SEVP Reports 2020 Drop in International Student Enrollment – SEVP reported a drop of 72 percent in international student enrollment in 2020, attributed to the COVID-19 pandemic and Trump-era immigration policies.

14. EOIR Releases New Interactive Policy Manual – The manual includes the Immigration Court and Board of Immigration Appeals Practice Manuals, the Office of the Chief Administrative Hearing Officer Practice Manual, and all current agency policy memoranda.

15. State Dept. Proposes Increase in Passport Security Surcharge – The Department of State proposes to raise the passport security surcharge from $60 to $80.

16. USCIS Issues Guidance on P-1A Internationally Recognized Athletes – The update in the USCIS Policy Manual provides more detailed guidance on the required prospective level of performance and provides USCIS’s interpretation of, and examples related to, the undefined regulatory phrase, “major United States sports league or team” as it relates to internationally recognized P-1A athletes.

17. House Passes ‘Dreamer’ and Farmworker Bills; Senate Passage Uncertain – On March 18, 2021, two immigration-related bills passed the House of Representatives with bipartisan support.

18. DHS Withdraws Affidavit of Support Proposed Rule – The Department of Homeland Security announced the withdrawal of a proposed rule, “Affidavit of Support on Behalf of Immigrants,” published on October 2, 2020.

19. EB-5 Reauthorization Bill Introduced in Senate – The “EB-5 Reform and Integrity Act of 2021” would reauthorize the EB-5 Regional Center Program, set to expire at the end of June, through 2026. The bill also includes measures to address fraud and national security concerns.

20. Labor Dept. Proposes Further Delay of Effective Date of Prevailing Wage Rule – The Employment and Training Administration proposes to further delay the effective date of the prevailing wage rule until November 14, 2022, along with corresponding proposed delays to the rule’s transition dates.

21. Registration Period Opens for TPS for Syrians – DHS has extended and redesignated Syria for temporary protected status through September 30, 2022. The 60-day re-registration period runs through May 18, 2021.

22. USCIS Stops Applying Public Charge Final Rule to All Pending Applications and Petitions – USCIS stopped applying the public charge final rule to all pending applications and petitions on March 9, 2021. The agency removed content related to the vacated rule from the affected USCIS forms and posted updated versions of affected forms.

23. CBP Extends Temporary Travel Restrictions Between U.S. and Canada/Mexico – U.S. Customs and Border Protection announced that temporary travel restrictions between the United States and Canada, and between the United States and Mexico, at land ports of entry along the border (including passenger ferry services and pleasure boat travel) will remain in effect through April 21, 2021. Travel will be limited to that deemed “essential,” due to continued transmission of the virus associated with the COVID-19 pandemic.

24. DHS Rescinds Public Charge Rule, Withdraws Appeals of Injunctions Blocking It – DHS rescinded regulations resulting from a final rule that was vacated by a federal district court. Under the now-rescinded rule, the government could deny applications for green cards, temporary nonimmigrant status, and naturalization if the government found they relied on—or were at risk of relying on—public benefits. The Biden administration also withdrew the federal government’s appeals of injunctions blocking the DHS public charge rule.

25. State Dept. Releases Guidance for Those Previously Refused Visas Under Travel Bans – The Department issued guidance in response to President Biden’s signing of two proclamations that ended travel bans on certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

26. State Dept. Extends Expansion of Interview Waiver Eligibility – The Department has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. The temporary expansion is effective until December 31, 2021.

27. USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos – USCIS announced that it may reopen and/or reconsider adverse H-1B decisions on Form I-129, Petition for a Nonimmigrant Worker, that were made based on three rescinded policy memoranda.

28. ABIL Asks for Withdrawal of H-1B Lottery Rule Prioritizing Wages; DHS Delays Effective Date Until May 14 – ABIL formally submitted a comment asking the Department to withdraw its final rule prioritizing wages in adjudicating H-1B applications. DHS delayed the effective date of the wage rule until May 14, 2021.

29. Lawsuit Challenges USCIS Rejections of H-1B Petitions Filed After October 1 – A lawsuit filed in a federal district court on behalf of seven U.S. employers whose H-1B petitions were rejected challenges USCIS’s “arbitrary and capricious refusal to accept timely and properly filed H-1B petitions” subject to the annual cap.

30. DHS Designates Venezuela, Burma for TPS for 18 Months – The Department of Homeland Security has designated Venezuela and Burma for temporary protected status for 18 months.

31. State Dept. Launches Monthly Live “Chats with Charlie” re Visa Bulletin – The Visa Bulletin for April 2021 announces the launch of live “Chats with Charlie” to discuss information provided in the monthly Visa Bulletin.

32. ABIL Global: Canada – There are new pandemic-related rules for travel across the land border and by air.

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 – April 2021

1. Bipartisan Bill Introduced in Senate Would Provide Up to 40,000 Unused Immigrant Visas for Doctors, Nurses

New legislation introduced on March 29, 2021, by Democratic and Republican senators would provide unused employment-based immigrant visas for up to 25,000 foreign nurses and 15,000 foreign physicians and their family members. The Healthcare Workforce Resilience Act (S. 1024) is intended to beef up the U.S. response to the COVID-19 pandemic. Below are highlights:

• The visas would be made available from a pool of recaptured visas that were unused in fiscal years 1992 through 2020, and would not be counted against the total number of immigrant visas reserved for professional nurses and physicians.
• The visas would be exempt from per-country numerical limits and would be issued in order of the priority date assigned at the time the visa petition was filed.
• The petitioner would need to attest that the hiring would not displace a U.S. worker.
• Processing would be expedited.
• The filing period would be limited to 90 days following the termination of President Biden’s COVID-19 pandemic emergency declaration.

The bill is supported by several dozen organizations, including the American Academy of Family Physicians, the American Academy of Pediatrics, the American Hospital Association, the American Medical Association, the National Rural Health Association, and others.

Details:

• “Young, Durbin, Senators Introduce Bipartisan Bill Addressing Shortage of Doctors, Nurses,” Press Release, Sen. Todd Young (R-Ind.), Mar. 29, 2021, https://www.young.senate.gov/newsroom/press-releases/young-durbin-senators-introduce-bipartisan-bill-addressing-shortage-of-doctors-nurses
• Bill text, https://www.congress.gov/bill/117th-congress/senate-bill/1024?q=%7B%22search%22%3A%5B%22S.+1024%22%5D%7D&s=3&r=1

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2. USCIS Completes Initial FY 2022 H-1B Cap Season Selections; Petitions May Be Filed Now

U.S. Citizenship and Immigration Services (USCIS) announced on March 30, 2021, that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap).

The agency notified all prospective petitioners with selected registrations that they are eligible to file H-1B cap-subject petitions for the named beneficiaries. The filing period for petitions began on April 1, 2021. USCIS said that when completing the Form I-129, Petition for a Nonimmigrant Worker:

[P]lease ensure that the below question is included as Question 5 in Supplement H on page 13. If you have already filled out Form I-129 and this question was not included, you may replace Supplement H in your petition by printing out and completing pages 13 and 14 from the current version of Form I-129 on uscis.gov and including them with your petition. Starting July 1, 2021, we will only accept the 03/10/21 edition of Form I-129. Until then, you can also use the 09/30/20 and 01/27/20 editions.

The question to be included states, “If you selected a. or d. in Item Number 4., and are filing an H-1B cap petition (including a petition under the U.S. advanced degree exemption), provide the Beneficiary Confirmation Number from the H-1B Registration Selection Notice for the beneficiary named in this petition (if applicable).”

Details:

• FY 2022 H-1B Cap Season Updates, USCIS, Mar. 30, 2021, https://www.uscis.gov/news/alerts/fy-2022-h-1b-cap-season-updates
• H-1B Electronic Registration Process, USCIS, Mar. 4, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
• H-1B Cap Season, USCIS, Mar. 31, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season

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3. DHS Extends I-9 Requirement Flexibility Until May 31, 2021

The Department of Homeland Security (DHS) announced an extension until May 31, 2021, of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing COVID-19 pandemic precautions. The temporary guidance had been set to expire March 31.

The flexibility applies only to employers and workplaces that are operating remotely.

Details:

• DHS announcement, Mar. 31, 2021, https://www.uscis.gov/i-9-central/form-i-9-related-news/dhs-extends-form-i-9-requirement-flexibility-effective-mar-31-2021

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4. “Blank Space” Criteria Eliminated for Rejection of Forms

U.S. Citizenship and Immigration Services (USCIS) has eliminated “blank space” form rejection criteria introduced in 2019 and reverted to the criteria it applied before October 2019.

USCIS will no longer reject the following forms based solely on whether an applicant leaves a blank space anywhere on the form: Form I-589, Application for Asylum and for Withholding of Removal; Form I-612, Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended); and Form I-918, Petition for U Nonimmigrant Status.

However, USCIS said it may reject these forms, or delays might be created, if an applicant leaves required spaces blank, fails to respond to questions related to filing requirements, or omits any required initial evidence.

Details:

• USCIS announcement, April 1, 2021, https://www.uscis.gov/news/alerts/uscis-confirms-elimination-of-blank-space-criteria

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5. ICE Announces New SEVIS Process for Cap-Gap Extensions

On March 26, 2021, the Student and Exchange Visitor Program (SEVP) updated the Student and Exchange Visitor Information System (SEVIS) to remove the cap-gap extension link. This link allowed designated school officials (DSOs) to temporarily apply cap-gap relief to the record of an eligible F-1 student who is the beneficiary of a filed H-1B petition but is awaiting confirmation from U.S. Citizenship and Immigration Services (USCIS) that their petition was selected for processing. USCIS implementation of the H-1B Electronic Registration Process in 2020 eliminated this need, U.S. Immigration and Customs Enforcement (ICE) said.

SEVIS will automatically add the cap-gap extension to the record of an eligible F-1 student who is a beneficiary of a pending cap-subject H-1B petition, ICE said. If the cap-gap extension notation is missing from an eligible student’s record or other changes are needed, DSOs must contact the SEVP Response Center (SRC) at 703-603-3400 or 800-892-4829 (email: [email protected]) and request a data fix.

Details:

• “New SEVIS Process for Cap-Gap Extensions,” SEVP Broadcast Message, Mar. 29, 2021, https://www.ice.gov/doclib/sevis/pdf/bcm2103-02.pdf

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6. State Dept. Issues Update on Suspension of Entry for Certain Nonimmigrants

The Department of State issued an update on Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants. That proclamation expired on March 31, 2021.

The Department said that applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing “phased resumption of visa services” guidance. Visa applicants who were previously refused visas due to the restrictions “may reapply by submitting a new application including a new fee.”

The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis, the Department’s said: “Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on the services that post is currently offering.”

Details:

• Update on Presidential Proclamation 10052, Dept. of State, Apr. 1, 2021, https://travel.state.gov/content/travel/en/News/visas-news/update-on-presidential-proclamation-10052.html

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7. EOIR Implements Revised Case Flow Processing Model for Certain Non-Detained Cases

In a memorandum issued on April 2, 2021, the Department of Justice’s Executive Office for Immigration Review (EOIR) issued a revised case flow processing model and canceled a policy memorandum issued in November 2020 (PM 21-05) that implemented a new model generally applying to removal cases involving non-detained respondents with representation.

In general, under the new model, for non-detained cases in which a representative files a Form EOIR-28 at least 15 days before a master calendar hearing, “the hearing will be vacated and the court will send to the parties a scheduling order, setting deadlines for the filing of written pleadings and any evidence related to the charges of removability. The deadline will be 30 days after the most recently scheduled hearing date, whether vacated or held, unless pleadings have already been taken or a deadline is otherwise specified by the immigration judge. Where necessary, parties may request a master calendar hearing or seek extensions of filing deadlines by written motion,” EOIR said.

Details:

• “Revised Case Flow Processing Before the Immigration Courts,” EOIR (PM 21-18), Apr. 2, 2021, https://www.justice.gov/eoir/book/file/1382736/download

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8. Labor Dept. Solicits Comments on O*NET Data Collection Authority

The Department of Labor’s Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “O*NET Data Collection Program.”

The O*NET Data Collection Program is “an ongoing effort to collect and maintain current information on the detailed characteristics of occupations and skills for more than 900 occupations,” the notice explains. The resulting database “provides the most comprehensive standardized source of occupational and skills information in the nation.” The Department noted that O*NET information is “used by a wide range of audiences, including individuals making career decisions, public agencies and schools providing career exploration services or education and training programs, and businesses making staffing and training decisions. The O*NET system provides a common language, framework and database to meet the administrative needs of various federal programs, including workforce investment and training programs.”

Comments are due by May 28, 2021.

Details:

• • Dept of Labor notice, Mar. 29, 2021, https://www.govinfo.gov/content/pkg/FR-2021-03-29/pdf/2021-06387.pdf

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9. Maryland Governor Asks for Elimination of Lottery System and More H-2B Visas to Help Seafood Industry, Others

On March 23, 2021, Maryland Governor Larry Hogan sent a letter to Alejandro Mayorkas, Secretary of Homeland Security, and Marty Walsh, Secretary of Labor, asking for elimination of the H-2B nonimmigrant visa lottery system and an increase in the number of H-2B visas, now capped annually at 66,000, “to the maximum allowable under federal law and under the legislative language included in the omnibus bill.” Of particular concern is Maryland’s blue crab harvest season, which started on April 1.

Gov. Hogan said the request was in support of “Maryland’s seafood industry and other seasonal employers.” He said that H-2B workers are “essential” and “vital to Maryland’s seafood industry and market, which has grown to include regional, national, and international reach.” He noted that Maryland “has fought” to support the seafood industry during the COVID-19 pandemic and to “find creative ways to protect our markets and workers.” A loss of H-2B workers would “negate that work, disrupt an already abnormal supply chain, jeopardize the state’s $355 million seafood industry, and threaten thousands of direct and indirect jobs,” he warned, citing research by the University of Maryland indicating that every H-2B temporary worker in crab processing, for example, “helps create an average 2.5 jobs for American citizens.” He said that without the temporary workers and an end to the “arbitrary lottery system,” iconic family and small businesses could be forced to close.

Details:

• Letter from Gov. Larry Hogan of Maryland, Mar. 23, 2021, https://governor.maryland.gov/wp-content/uploads/2021/03/H2B-Letter_3.21.21.pdf

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10. USCIS to Reopen Naturalization Application and Visa Approval for Melania Trump

U.S. Citizenship and Immigration Services (USCIS) announced on April 1, 2021, that it plans to reopen Melania Trump’s naturalization application and “Einstein” EB-1 visa petition approval based on new information that there was not good and sufficient cause to approve the petition. The visa is intended for those with extraordinary ability and sustained national and international acclaim.

After reportedly entering the United States on a B-1/B-2 visitor visa in 1996 and then obtaining an H-1B visa, Melania applied for the “extraordinary ability” EB-1 visa while dating Donald Trump in 2000. It was approved in 2001. The two married in 2005, and she acquired U.S. citizenship in 2006. She then sponsored her parents, who acquired U.S. citizenship in 2018.

Her attorney said, “There is no doubt that she is highly accomplished. She has been associated with some of the biggest ad campaigns in the world, and she was highly remunerated.” When pressed, he could not recall what those campaigns were, but he noted that there were some mighty convincing documents included with the application. “I studied them. I studied them with a magnifying glass. I studied them three-dimensionally,” he said emphatically.

Donald—entrepreneur, renowned reality rogue, and now erstwhile President—also vouched for Melania’s qualifications. He filed an affidavit in support of her application, stating that she was the most phenomenal model in world history and should have gotten the Nobel Prize, the Pulitzer, and an Oscar by then. He noted that, among other things, she was dating a very powerful, successful, smart, and rich man: “In fact, I’m like filthy rich. That alone should qualify her,” he said, but added that she has many other attributes. “I mean, come on! She’s fabulous. Just look at me—I mean her. She looks so good on my arm,” he said when interviewed at the time. When asked whether modeling and dating a wealthy and powerful man were sufficient to qualify her for an extraordinary ability visa and how that jibed with his general anti-immigration stance, he said the question was “nasty” and “fake news,” and called the questioner a loser.

Asked what prompted the decision to reopen Melania’s naturalization case and look into her visa history, an agency spokesperson who wished to remain anonymous said USCIS now is “waking up as if from a long stupor, or a tornado perhaps, rubbing its eyes and looking around at the immigration landscape like a newborn.”

Responding to a follow-up question regarding additional details on Melania’s case, the spokesperson would only say, “Happy April Fool’s Day!”

Details:

• “What is the Einstein Visa? And How Did Melania Trump Get One?”, BBC News, Mar. 2018, https://www.bbc.com/news/world-us-canada-43256318
• “How Did Melania Trump Get U.S. Citizenship?”, Jewish Standard, Dec. 22, 2016, https://jewishstandard.timesofisrael.com/how-did-melania-trump-get-u-s-citizenship/
• “Melania Trump’s ‘Einstein’ Visa and ‘Chain Migration’ Detailed in New Book,” Mercury News, June 16, 2020, https://www.mercurynews.com/2020/06/16/melania-trumps-einstein-visa-and-chain-migration-detailed-in-new-book/

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11. Class Action Filed Against DHS for L-2 and H-4 Processing Delays

On March 22, 2021, the American Immigration Lawyers Association (AILA) and Wasden Banias, LLP, filed a class action lawsuit against the Department of Homeland Security (DHS), challenging processing delays on extensions of status and employment authorization documents (EADs) for H-4 and L-2 nonimmigrant spouses.

AILA President Jennifer Minear said, “DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 nonimmigrants, provide automatic work authorization while DHS processes EAD renewal requests, and allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiration to prevent gaps in work authorization.’

Details:

• AILA press release, https://www.aila.org/advo-media/press-releases/2021/lawsuit-l2-h4-processing-delays

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12. USCIS Extends Flexibilities for Responding to Agency Requests

U.S. Citizenship and Immigration Services (USCIS) has extended flexibilities in response to the ongoing COVID-19 pandemic. USCIS will consider a response to certain requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, the agency will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before taking any action. This flexibility applies to the documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and June 30, 2021, inclusive.

Affected documents include requests for evidence; continuations to request evidence (N-14); notices of intent to deny, revoke, rescind, or terminate regional centers; and motions to reopen an N-400 pursuant to 8 CFR 335.5.

Details:

• USCIS notice, https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-4

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13. SEVP Reports 2020 Drop in International Student Enrollment

U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) reported a drop of 72 percent in new international student enrollment in U.S. schools in 2020 as compared to calendar year 2019. Decreases were attributed to the COVID-19 pandemic and Trump-era immigration policies. The annual report, which presents data from the Student and Exchange Visitor Information System, also noted that international students chose business administration as a major most often in 2020, followed by second-language learning and computer science.

Also, according to the report:

• The total number of SEVIS records for active F-1 and M-1 students was 1,251,569 in calendar year 2020, a decrease of 17.86 percent from calendar year 2019.
• There were 122,699 pre- and post-completion optional practical training (OPT) students with an employment authorization document who reported working for an employer in calendar year 2020, compared to 138,898 in calendar year 2019—a nearly 12 percent decrease.
• Chinese student enrollment declined in 2020 compared with 2019 (down by 91,936). Indian student enrollment also decreased (down by 41,761 in 2020 versus 2019).

Details:

• SEVIS by the Numbers, Mar. 22, 2021, https://www.ice.gov/doclib/sevis/pdf/sevisBTN2020.pdf
• SEVIS report announcement, https://studyinthestates.dhs.gov/2021/03/read-the-2020-sevis-by-the-numbers-report

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14. EOIR Releases New Interactive Policy Manual

The Executive Office for Immigration Review (EOIR) announced the release of its first interactive policy manual. EOIR said the manual is the “culmination of a multi-year project that represents the agency’s first comprehensive review of its policies. This effort involved cross-component collaboration and the dedication of many employees to identify redundancies, clarify ambiguities, eliminate surplusage, and update policies to reflect current law and practice.”

EOIR said the manual includes the Immigration Court and Board of Immigration Appeals Practice Manuals, the Office of the Chief Administrative Hearing Officer Practice Manual, and all current agency policy memoranda.

Details:

• EOIR press release, https://www.justice.gov/eoir/pr/eoir-announces-release-comprehensive-policy-manual
• EOIR Policy Manual, https://www.justice.gov/eoir/eoir-policy-manual

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15. State Dept. Proposes Increase in Passport Security Surcharge

The Department of State issued a proposed rule on March 26, 2021, to raise the passport security surcharge from $60 to $80.

Comments are due by May 25, 2021.

Details:

• Schedule of Fees for Consular Services—Passport Security Surcharge, Proposed Rule, Dept. of State, https://www.govinfo.gov/content/pkg/FR-2021-03-26/pdf/2021-06263.pdf

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16. USCIS Issues Guidance on P-1A Internationally Recognized Athletes

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on internationally recognized athletes (P-1A nonimmigrants). The update in the USCIS Policy Manual provides more detailed guidance on the required prospective level of performance and provides USCIS’s interpretation of, and examples related to, the undefined regulatory phrase, “major United States sports league or team” as it relates to internationally recognized P-1A athletes.

The guidance clarifies that “major United States sports league” is interpreted as “one that has a distinguished reputation commensurate with an internationally recognized level of performance, and “major United States sports team” means “a team that participates in such a league.”

Details:

• USCIS Policy Alert, PA-2021-04, Mar. 26, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210326-Athletes.pdf
• USCIS Policy Manual, https://www.uscis.gov/policy-manual

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17. House Passes ‘Dreamer’ and Farmworker Bills; Senate Passage Uncertain

On March 18, 2021, two immigration-related bills passed in the House of Representatives with bipartisan support. The bills are briefly summarized below:

• The American Dream and Promise Act (H.R. 6) passed the House 228-197, with 9 Republicans joining Democrats in voting in favor. The legislation includes provisions to create a pathway to legalization for an estimated 2.5 million “Dreamers” who came to the United States as children, granting conditional permanent residence for 10 years, granting full permanent resident status subject to certain requirements, and canceling removal proceedings for eligible people.

The bill imposes various qualifying requirements for conditional permanent residence, such as the person being continuously physically present in the United States since January 1, 2021, passing a background check, and being enrolled in or having completed certain educational programs. The conditions placed on permanent resident status would be removed if the person applies and meets certain requirements, such as completing certain programs at an educational institution, serving in the military, or being employed. Removal also would be canceled and a path to permanent residence would be provided for certain beneficiaries of temporary protected status or deferred enforced departure.

• The Farm Workforce Modernization Act (H.R. 1603) passed the House 247-174, with 30 Republicans joining all but one Democrat in voting in favor. The legislation includes provisions to streamline the H-2A agricultural worker visa process, establish a pathway for eligible farmworkers to obtain permanent residence (green cards), and create temporary status as “Certified Agricultural Workers.” Roughly a million farmworkers could be affected by the legislation.

Both bills now head to the Senate, where their fates are uncertain.

Details:

• American Dream and Promise Act of 2021 (H.R. 6), https://www.congress.gov/bill/117th-congress/house-bill/6
• Farm Workforce Modernization Act of 2021 (H.R. 1603), https://www.congress.gov/bill/117th-congress/house-bill/1603
• “House Tackles Biden’s Immigration Plans Amid Migrant Influx,” New York Times, Mar. 15, 2021, https://www.nytimes.com/2021/03/15/us/politics/biden-immigration-plan-bill.html (subscription)
• “House Passes Pair of Immigration Bills Amid Influx of Migrants Crossing U.S.-Mexico Border,” CNN Politics, Mar. 18, 2021, https://www.cnn.com/2021/03/18/politics/house-immigration-vote-bills/index.html
• “Immigration Bills Passed in the House Face Uncertain Fate in the Senate,” CBS News, Mar. 19, 2021, https://www.cbsnews.com/news/immigration-bills-daca-senate-obstacles/
• “House Votes to Give Millions of Dreamers and Farmworkers a Path to Citizenship,” New York Times, Mar. 18, 2021, https://www.nytimes.com/2021/03/18/us/politics/biden-immigration.html (subscription)
• “House Passes Immigration Bill, Creating Pathway to Citizenship for ‘Dreamers’,” USA Today, Mar. 18, 2021, https://www.usatoday.com/story/news/politics/2021/03/18/house-passes-immigration-bill-creating-citizenship-pathway-dreamers/4729821001/
• “Immigration Bill Creating Green Card Process for Farmworkers Passes House, Legislation Now Goes to Senate,” USA Today, Mar. 18, 2021, https://www.usatoday.com/story/news/politics/2021/03/18/house-passes-bill-gives-legal-status-undocumented-farmworkers/4729871001/

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18. DHS Withdraws Affidavit of Support Proposed Rule

On March 19, 2021, the Department of Homeland Security (DHS) announced the withdrawal of a proposed rule, “Affidavit of Support on Behalf of Immigrants,” published on October 2, 2020. The agency said that by withdrawing the rule, “DHS aims to reduce barriers and alleviate burdens on American families who wish to sponsor individuals immigrating to the U.S. within the legal immigration system.” The withdrawal notice will be published in the Federal Register on March 22, 2021.

The proposed rule would have revised DHS regulations governing affidavit of support requirements. The withdrawal follows an executive order President Biden issued on February 2, 2021, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which revoked a related 2019 presidential memorandum.

Details:

• DHS announcement, Mar. 19, 2021, https://www.uscis.gov/news/alerts/dhs-withdraws-affidavit-of-support-proposed-rule
• Unpublished version of DHS withdrawal notice, to be published on March 22, 2021, https://public-inspection.federalregister.gov/2021-05427.pdf
• Executive Order 14012, https://www.federalregister.gov/documents/2021/02/05/2021-02563/restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts
• Proposed Rule (Oct. 2, 2020), https://www.federalregister.gov/documents/2020/10/02/2020-21504/affidavit-of-support-on-behalf-of-immigrants

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19. EB-5 Reauthorization Bill Introduced in Senate

On March 18, 2021, Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) introduced the “EB-5 Reform and Integrity Act of 2021,” a bill that would reauthorize the EB-5 Regional Center Program, set to expire at the end of June, through 2026. The bill also includes measures to address fraud and national security concerns.

According to statements from Sens. Grassley and Leahy, the bipartisan bill would establish new disclosure requirements for EB-5 regional centers “to protect investors and certify regional center compliance with program rules.” It also would require the Department of Homeland Security to perform regular audits of and site visits to regional centers.

Details:

• Grassley statement, https://www.grassley.senate.gov/news/news-releases/grassley-leahy-introduce-new-eb-5-investor-visa-integrity-reforms
• Leahy statement, https://www.leahy.senate.gov/press/leahy-grassley-introduce-eb-5-investor-visa-integrity-reform-bill
• Bill text, https://www.leahy.senate.gov/imo/media/doc/EB-5%20Reform%20and%20Integrity%20Act%202021.pdf
• Bill summary, https://www.grassley.senate.gov/imo/media/doc/EB-5%20Reform%20and%20Integrity%20Act%202021%20-%20Summary.pdf
• IIUSA press release, https://iiusa.org/blog/press-release-introduction-of-eb-5-reform-and-reauthorization-bill-applauded-by-iiusa-and-cscj/

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20. Labor Dept. Proposes Further Delay of Effective Date of Prevailing Wage Rule

On March 12, 2021, the Department of Labor’s Employment and Training Administration (ETA) published a final rule delaying until May 14, 2021, the effective date of a rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” which was published January 14, 2021. ETA proposes to further delay the effective date of the rule by 18 months, until November 14, 2022, along with corresponding proposed delays to the rule’s transition dates.

The proposed delay notice, which includes a request for comments, will be published in the Federal Register on March 22, 2021.

Details:

• Advance copy of proposed delay notice,
  https://public-inspection.federalregister.gov/2021-05847.pdf

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21. Registration Period Opens for TPS for Syrians

The Department of Homeland Security (DHS) has extended and redesignated Syria for temporary protected status (TPS) for 18 months, effective March 31, 2021, through September 30, 2022. The 60-day re-registration period began March 19, 2021, and runs through May 18, 2021.

U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of employment authorization documents (EADs) previously issued under the TPS designation of Syria for 180 days, through September 27, 2021. USCIS will issue new EADs with a September 30, 2022, expiration date to eligible Syrian TPS beneficiaries who timely re-register and apply for EADs during the re-registration period.

The extension allows approximately 6,700 current beneficiaries to re-register and retain TPS through September 30, 2022, as long as they otherwise continue to meet the TPS eligibility requirements. The re-designation of Syria allows an estimated 1,800 additional individuals who have been continuously residing in the United States since March 19, 2021, and continuously physically present in the United States since March 31, 2021, to file initial applications to obtain TPS if they are otherwise eligible, USCIS said.

Details:

• USCIS release, https://www.uscis.gov/news/news-releases/registration-period-opens-for-temporary-protected-status-tps-for-syria
• Federal Register notice, Mar. 19, 2021, https://www.federalregister.gov/documents/2021/03/19/2021-05715/extension-and-redesignation-of-syria-for-temporary-protected-status

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22. USCIS Stops Applying Public Charge Final Rule to All Pending Applications and Petitions

U.S. Citizenship and Immigration Services (USCIS) stopped applying the public charge final rule to all pending applications and petitions on March 9, 2021. The agency removed content related to the vacated rule from the affected USCIS forms and posted updated versions of affected forms.

Starting April 19, 2021, USCIS will accept only the 03/10/21 edition of these forms: I-864, I-864A, I-864EZ, I-864W; I-539, I-539A; I-129CW, I-129CWR; I-129; I-485, I-485A, I-485J; and
I-912.

Details:

• USCIS alert, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge
• USCIS final rule, Mar. 15, 2021, https://www.govinfo.gov/content/pkg/FR-2021-03-15/pdf/2021-05357.pdf
• Litigation summary, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/inadmissibility-on-public-charge-grounds-final-rule-litigation
• USCIS forms, https://www.uscis.gov/forms/all-forms

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23. CBP Extends Temporary Travel Restrictions Between U.S. and Canada/Mexico

U.S. Customs and Border Protection announced that temporary travel restrictions between the United States and Canada, and between the United States and Mexico, at land ports of entry along the border (including passenger ferry services and pleasure boat travel) will remain in effect through April 21, 2021. Travel will be limited to that deemed “essential,” due to continued transmission of the virus associated with the COVID-19 pandemic.

Details:

• Federal Register notice re U.S.-Canada travel restrictions, https://www.govinfo.gov/content/pkg/FR-2021-03-19/pdf/2021-05878.pdf
• Federal Register notice re U.S.-Mexico travel restrictions, https://www.govinfo.gov/content/pkg/FR-2021-03-19/pdf/2021-05877.pdf

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24. DHS Rescinds Public Charge Rule, Withdraws Appeals of Injunctions Blocking It

The Department of Homeland Security (DHS) rescinded regulations resulting from a final rule issued in August 2019 that was vacated by a federal district court. Under the now-rescinded rule, the government could deny applications for green cards, temporary nonimmigrant status, and naturalization if the government found they relied on—or were at risk of relying on—public benefits. The Biden administration also withdrew the federal government’s appeals of injunctions blocking the DHS public charge rule. However, 11 Republican-led states said that they plan to ask courts to continue the litigation.

USCIS will issue updated guidance on affected forms. In the interim, USCIS said it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Forms I-129, I-129CW, I-539, or I-539A based on whether the public benefits questions (Forms I-129 (Part 6), I-129CW (Part 6), I-539 (Part 5), and I-539A (Part 3)) have been completed or left blank. Those issued Requests For Evidence (RFEs) and Notices of Intent to Deny (NOIDs) will not need to submit information or documents solely as required by the public charge rule. However, all other requests raised in the RFE/NOID must be answered.

Details:

• “DHS Secretary Statement on the 2019 Public Charge Rule,” USCIS, Mar. 9, 2021, https://www.uscis.gov/news/news-releases/dhs-secretary-statement-on-the-2019-public-charge-rule
• Final Rule: Inadmissibility on Public Charge Grounds; Implementation of Vacatur,
• USCIS guidance, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge
• Joint Stipulation to Dismiss, DHS v. State of New York,
• “States Seek to Take Over Defense of ‘Public Charge’ Rule,” Reuters, Mar. 11, 2021, https://www.reuters.com/article/immigration-publiccharge/states-seek-to-take-over-defense-of-public-charge-rule-idUSL1N2L93DH

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25. State Dept. Releases Guidance for Those Previously Refused Visas Under Travel Bans

On March 10, 2021, the Department of State issued guidance in response to President Biden’s signing of two proclamations on January 20, 2021, that ended travel bans on certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

Following the Department’s review, eligible immigrant visa applicants whose entry was refused previously under the travel bans and who did not qualify for waivers before January 20, 2020, may submit new visa applications. Those whose entry was refused under the bans and were determined not to qualify for a waiver on or after January 20, 2020, may request their local embassy or consulate to reconsider their cases within one year of the date of waiver refusal without submitting a new application or fee.

Nonimmigrant visa applicants whose entry was refused previously due to the travel bans and who did not qualify for waivers may submit new visa applications.

The Department can immediately process visa applications for eligible individuals from the affected countries. However, local U.S. embassies or consulates may not be able to schedule all affected applicants for visa interviews immediately due to COVID-19-related restrictions. Applicants should consult the website of their nearest U.S. embassy or consulate to determine if their cases qualify for expedited processing.

Details:

• Rescission of Presidential Proclamations 9645 and 9983, Dept. of State, Mar. 10, 2021, https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html

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26. State Dept. Extends Expansion of Interview Waiver Eligibility

The Department of State, in consultation with the Department of Homeland Security, extended until December 31, 2021, a temporary expansion of the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification to those whose nonimmigrant visas expired within 48 months. The temporary policy was due to expire March 31, 2021.

Previously, only those applicants whose nonimmigrant visas expired within 24 months were eligible for interview waivers. This change “will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff,” the Department of State said. Travelers should review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.

Details:

• “Expansion of Interview Waiver Eligibility,” Dept. of State, Mar. 11, 2021, https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html

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27. USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos

U.S. Citizenship and Immigration Services (USCIS) announced on March 12, 2021, that it may reopen and/or reconsider adverse H-1B decisions on Form I-129, Petition for a Nonimmigrant Worker, that were made based on three rescinded policy memoranda. USCIS said it “will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.” The rescinded memos include:

• “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” HQ 70/6.2.8 [AD 10-24)] (Jan. 8, 2010)
• “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” PM-602-0157 (Feb. 22, 2018)
• “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” PM-602-0142 (Mar. 31, 2017)

USCIS made the rescissions in memoranda issued on June 17, 2020, and on February 3, 2021.

Details:

• “USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos,” USCIS, Mar. 12, 2021, https://www.uscis.gov/news/alerts/uscis-may-reopen-h-1b-petitions-denied-under-three-rescinded-policy-memos
• USCIS June 17, 2020, memorandum, PM-602-0114, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0114_ITServeMemo.pdf
• USCIS February 3, 2021, memorandum, PM-602-0142.1, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf

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28. ABIL Asks for Withdrawal of H-1B Lottery Rule Prioritizing Wages; DHS Delays Effective Date Until May 14

The Alliance of Business Immigration Lawyers (ABIL) formally submitted a comment asking the Department of Homeland Security (DHS) to withdraw its final rule prioritizing wages in adjudicating H-1B applications.

ABIL said the final rule “would unlawfully and unjustifiably give preference to workers who earn higher wages, despite the fact that these wages are drawn from limited federal data sources” that are “not designed for application to the H-1B visa program, and bear no relation to the value a highly skilled worker adds to the United States.” ABIL believes that because of the wide variety of occupational categories into which H-1B beneficiaries may fall, the use of wage data as a proxy for high skills and qualifications “will not accomplish the outcomes DHS desires” and instead “will unfairly discriminate against and burden law-abiding employers,” particularly small and medium-size businesses that will find the H-1B program unaffordable as a result.

ABIL also warned that the final rule is likely to “cause more work to be commissioned offshore” and thus undermine opportunities for U.S. workers along with the Biden administration’s desire that more work be performed in the United States.

On March 12, 2021, DHS delayed the effective date of the wage rule until May 14, 2021. DHS said the 60-day delay would allow the agency to “review any questions of fact, law, or policy.”

Details:

• Comment Submitted by Alliance of Business Immigration Lawyers, Mar. 10, 2021, https://www.regulations.gov/comment/USCIS-2020-0019-1279
• Notice delaying effective date of final rule, DHS, https://www.govinfo.gov/content/pkg/FR-2021-03-12/pdf/2021-05269.pdf

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29. Lawsuit Challenges USCIS Rejections of H-1B Petitions Filed After October 1

The American Immigration Council (AIC) sued on March 11, 2021, in federal court on behalf of seven U.S. employers whose H-1B petitions were rejected. The lawsuit challenges U.S. Citizenship and Immigration Services’ (USCIS) “arbitrary and capricious refusal to accept timely and properly filed H-1B petitions” subject to the annual cap. AIC said USCIS rejected the petitions filed after October 1 “simply because the H-1B worker’s intended employment start date—naturally—also fell after October 1.” Based on this timeline, AIC said, “USCIS created an absurd choice: foreign workers needed to start on October 1 (and not a day later), or the U.S. employer had to misrepresent the intended employment start-date by ‘back-dating’ the petition.” In fact, AIC noted, USCIS had accepted some with an employment start date after October 1 without issue.

Details:·

• “Challenging USCIS’ Arbitrary Rejections of Petitions Filed After October 1,” American Immigration Council, https://www.americanimmigrationcouncil.org/litigation/challenging-uscis%E2%80%99-arbitrary-rejections-h-1b-petitions-filed-after-october-1  ·
• Complaint,

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30. DHS Designates Venezuela, Burma for TPS for 18 Months

The Department of Homeland Security (DHS) has designated Venezuela and Burma for temporary protected status (TPS) for 18 months.

Venezuela TPS

Venezuela has been designated for TPS until September 2022. The 180-day registration period for eligible individuals to submit TPS applications began March 9, 2021, and is effective through September 5, 2021. DHS said the designation is due to “extraordinary and temporary conditions in Venezuela” that prevent its nationals from returning safely, “including a complex humanitarian crisis marked by widespread hunger and malnutrition, a growing influence and presence of non-state armed groups, repression, and a crumbling infrastructure.”The new TPS designation for Venezuela enables eligible Venezuelan nationals (and individuals without nationality who last resided in Venezuela) currently residing in the United States to file initial applications for TPS. Only those who can demonstrate continuous residence in the United States as of March 8, 2021, are eligible for TPS under Venezuela’s designation. A Federal Register notice provides additional details on how and when to apply for TPS and related employment authorization.The notice also provides information about Deferred Enforced Departure (DED) for eligible Venezuelan nationals (and persons without nationality who last habitually resided in Venezuela), and explains how eligible individuals may apply for DED-related employment authorization with USCIS, based on the January 19, 2021, memorandum from former President Donald Trump directing the Secretary to take appropriate measures for the implementation of DED for Venezuelan nationals for 18 months, through July 20, 2022.

Burma TPS

The new designation of Burma for TPS, which DHS said was in response to a military coup and security forces’ violence against civilians that is causing a “complex and deteriorating humanitarian crisis,” enables eligible Burmese nationals (and individuals without nationality who last habitually resided in Burma) currently residing in the United States to file initial applications for TPS. For Burma, only those who can demonstrate continuous residence in the United States as of March 11, 2021, will be eligible for TPS under Burma’s 18-month designation. An upcoming Federal Register notice will provide additional details on how and when to apply for TPS and related employment authorization.

Details:·

“Secretary Mayorkas Designates Venezuela for Temporary Protected Status for 18 Months,” USCIS, Mar. 8, 2021, https://www.uscis.gov/news/news-releases/secretary-mayorkas-designates-venezuela-for-temporary-protected-status-for-18-months ·

“Secretary Mayorkas Designates Burma for Temporary Protected Status,” USCIS, Mar. 12, 2021, https://www.dhs.gov/news/2021/03/12/secretary-mayorkas-designates-burma-temporary-protected-status ·

Federal Register notice on Venezuela TPS, Mar. 9, 2021, https://www.federalregister.gov/documents/2021/03/09/2021-04951/designation-of-venezuela-for-temporary-protected-status-and-implementation-of-employment

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31. State Dept. Launches Monthly Live “Chats with Charlie” re Visa Bulletin

The Department of State’s Visa Bulletin for April 2021 announced the launch of live monthly “Chats with Charlie.” @TravelGov will begin hosting “Chats with Charlie” on its YouTube channel (https://www.youtube.com/user/TravelGov) to discuss information provided in the monthly Visa Bulletin. Questions can be emailed to [email protected] ahead of the event with “Chat with Charlie Question” in the subject line. Questions will also be taken via the YouTube Live Chat feature and will be answered in real time. The Department said the event is intended to address issues of general interest related to the content of the Visa Bulletin. No policy, case, or post-specific questions will be accepted.Details:·         April 2021 Visa Bulletin, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-april-2021.html

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32. ABIL Global: Canada

There are new pandemic-related rules for travel across the land border and by air.

New COVID-19 Travel Rules

The federal government announced new COVID-19 pandemic-related travel rules in February:

Travel Across the Land Border

Non-essential travelers (such as returning “snowbirds”) must show proof of a negative COVID-19 test taken no longer than 72 hours earlier. In addition to the pre-departure COVID test, another COVID test will be administered at the land border. The traveler can then continue to the planned place of quarantine and must self-administer another COVID test during the 14-day quarantine. The self-test kit will be provided at the border.

Travel by Air

In addition to the pre-departure COVID test taken 72 hours before boarding a flight to Canada, all individuals, Canadians included, must take a test upon arrival at the first Canadian airport. They must then wait for the test result at a hotel on the official list and cover the cost of up to CA $2,000 for the hotel (prices will vary) and testing. The hotel must be booked before boarding the plane to Canada. Upon receipt of the test result, they may travel to their final quarantine destination for the remaining days (14 days total) and must self-administer another COVID test. The self-test kit will be provided at the airport. The following details also apply:

• The hotel must be booked at the first Canadian airport, meaning that a traveler who has a layover in Canada before their final destination must remain at the transit airport hotel until the test comes back negative. Only then can the final leg of the journey be completed.
• There is no exemption for vaccinated travelers.
• It is expected that the current exemptions (e.g., for medical personnel and essential workers) will remain valid, but this has not yet been confirmed.
• Flights on Canadian airlines to and from Mexico and the Caribbean remain suspended until April 30, 2021.

ArriveCAN remains mandatory for airport and land border arrivals. See https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19/arrivecan.html

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New Publications and Items of Interest

USCIS listening session on 2021 H-2B supplemental visas. U.S. Citizenship and Immigration Services (USCIS) invites stakeholders to a listening session on April 8, 2021, from 2 to 3:30 pm ET, to provide feedback on § 105 of the Consolidated Appropriations Act, 2021, which authorizes the Department of Homeland Security, in consultation with the Department of Labor, to increase the number of H-2B visas available to U.S. employers. USCIS said it hopes to solicit information on the current needs of U.S. employers in light of the COVID-19 public health emergency, possible worker protection options, and the effect that any potential increase in the number of H-2B workers may have on U.S. workers. https://www.uscis.gov/outreach/2021-h-2b-nonimmigrant-worker-supplemental-visas

New E-Verify feature. A new E-Verify feature, myUploads, allows employees to upload required documents in JPEG, PNG, or PDF formats to help resolve Tentative Nonconfirmations (TNCs). Employees can access their myE-Verify accounts by logging into their USCIS online accounts and uploading the requested documents. They can still use fax or mail to submit documents if they prefer. The employer should provide the Further Action Notice (FAN) to the affected employee, discuss the TNC privately with the employee, and allow the employee to decide whether he or she will contest the TNC. The FAN includes the steps for using myUploads to help resolve a DHS TNC. Once uploaded, the employee must call the number on the FAN to resolve the case. https://myeverify.uscis.gov/

New SAVE features. Systematic Alien Verification for Entitlements (SAVE) is enhancing its case search capabilities, including improved usability through a search bar and other features, and a more robust case search engine. SAVE will notify users by email at least three weeks before the go-live date for enhancements. https://save.uscis.gov/web/media/resourcesContents/SAVESearchCasesTipSheet.pdf 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

• Coronavirus.gov: Primary federal site for general coronavirus information
• USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
• CDC.gov/coronavirus: Centers for Disease Control and Prevention information

• American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
• NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

• https://www.dhs.gov/coronavirus-news-updates
• https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

• USCIS: USCIS.gov/coronavirus
• ICE:

• Overview and FAQs: https://www.ice.gov/coronavirus
• Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
  pdf

• CBP:

• Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
• Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

• Office of Foreign Labor Certification:

• OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
• COVID-19 FAQs:
  • Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
  • Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
  • Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

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

• Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
• Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
• J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

• Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has released the first episode, “Strategies for Resolving EB-5 Problems Series, Part 1: Project Problems,” in a three-part podcast series on the EB-5 immigrant investor program. This episode covers issues related to investment projects

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by Bloomberg Law in “Their Papers Mired in Pandemic Backlog, Visa Seekers Go to Court.” Mr. Kuck said that delays abroad have prompted EB-5 immigrant investors to join a third class action lawsuit that will be filed imminently. https://news.bloomberglaw.com/daily-labor-report/their-papers-mired-in-pandemic-backlog-visa-seekers-go-to-court

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) and Kaitlyn Box co-authored a new blog posting: “End the Arbitrary H-1B Lottery and Visa Quotas – and Other Practical Considerations for the Winners!” http://blog.cyrusmehta.com/2021/04/end-the-arbitrary-h-1b-lottery-and-visa-quotas-and-other-practical-considerations-for-the-winners.html

Mr. Mehta was quoted by India West in “To the Relief of H-1B Workers, Biden Lets Trump’s Ban on Foreign Workers Expire.” Mr. Mehta called for an overhaul of the H-1B program in a March 27, 2021, tweet quoted by the article: “The H-1B lottery—a game of chance—is an inappropriate way for U.S. employers to hire skilled foreign workers. Quotas and lotteries have no place in a modern immigration system. Let talent and skills freely come to the U.S.”

Mr. Mehta has authored a new blog posting: “CSPA Triumphs in Cuthill v. Blinken: Child of Parent Who Naturalizes Should Not Be Penalized.” http://blog.cyrusmehta.com/2021/03/cspa-triumphs-in-cuthill-v-blinken-child-of-parent-who-naturalizes-should-not-be-penalized.html

Mr. Mehta was quoted by India West in “President Biden Unlikely to Rescind Trump’s H-1B Ban.” He said, “The optics aren’t great. Biden hasn’t taken any actions to rescind it, possibly because of push-back from organized labor and a thrashing from Republicans. Biden needs support to pass a stimulus bill.” https://www.indiawest.com/news/business/president-biden-unlikely-to-rescind-trump-s-h-1b-ban/article_ed7563ea-7fe6-11eb-92fa-6378f2d25fce.html

Mr. Mehta was quoted by American Bazaar in “H-1B Visa Holders Seek Extension of 60-Day Grace Period After Job Loss Due to Pandemic.” He said, “Biden should at least allow the H-1B ban to lapse on March 31 even though he does not rescind it before the date. Although it would be powerful if he affirmatively rejects the ban any time from now till March 31.” https://www.americanbazaaronline.com/2021/03/11/h-1b-visa-holders-seek-extension-of-grace-period-due-to-job-losses-444512/?amp

David Isaacson, of Cyrus D. Mehta & Partners, PLLC, authored a new blog posting: “The Law Does Not Compel the Impossible – Or Does It?: Matter of C-C- and Awuku Asare v. Garland.” http://blog.cyrusmehta.com/2021/03/the-law-does-not-compel-the-impossible-or-does-it-matter-of-c-c-and-awuku-asare-v-garland.html

Wolfsdorf Rosenthal LLP published several blog postings: “Celebrating Women Empowered,” “E-Verify Update: Watch Your State’s Requirements,” and “Weekly Immigration Update.” https://wolfsdorf.com/blog/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Veja in “Kamala Harris’ First Major Mission: The Problem Is Not Simple: Finding a Solution for the Crowds of Immigrants Who Accumulate at the Border in Search of the American Dream.” He noted that Ms. Harris’s role “highlights the importance of the mission to untie the immigration knot, but it is a difficult task.” He added that it “will take a long time to stabilize Central American economies and create a safer environment from which people don’t feel they have to flee for their lives.” https://veja.abril.com.br/mundo/a-primeira-grande-missao-de-kamala-harris/ [Portuguese]

Mr. Yale-Loehr co-authored a blog: “Overcoming Polarization: How to Talk with Immigration Opponents.” https://inclusion.americanimmigrationcouncil.org/content/overcoming-polarization-how-talk-immigration-opponents

Mr. Yale-Loehr was quoted by Univision in “Titles 8 and 42, the Invisible Wall for Thousands of Immigrants Seeking Asylum in the United States.” He said, “The term ‘border crisis’ is exaggerated and too simplistic. In general, undocumented immigration to the United States is lower now than 20 years ago.” However, he noted an increase in unaccompanied children in part because former President Trump “refused to let them enter the country” to apply for asylum. “In the short term, we can deal with that by increasing the bed spaces for them (in processing centers) and placing more asylum agents at the border to decide their cases faster,” he said. But in the long term, “we need to work with Central American governments to stabilize their economies and reduce gang violence, so that people do not feel the need to come to the United States.” https://www.univision.com/noticias/inmigracion/titulos-8-42-muro-invisible-trunca-suenos-inmigrantes-buscan-asilo-eeuu [Spanish]

Mr. Yale-Loehr presented a webinar on how to overcome immigration polarization on March 19, 2021, as part of the Cornell Advocacy Project’s four-part speaker series, “Speak Now.” Mr. Yale-Loehr discussed how issues of immigration have fractured along party lines and how that trend can be reversed. Topics included how and why immigration issues are polarized, how to advocate for those fighting within politically polarized immigration systems, and strategies for engaging in discussion with those who hold opposing views on immigration. https://www.youtube.com/watch?v=VwdCR698NoI (video); https://open.spotify.com/episode/7B6fMLTTcksOmGddaekmyT?si=PcYO44H5QjqEzd0vGYwU_g&nd=1 (podcast)

Mr. Yale-Loehr was quoted by Inside Higher Ed in “Dream Derailed Leads to Lawsuit Against Berkeley.” The article discusses a lawsuit filed by a former international student of law at the University of California, Berkeley, for allegedly misinforming him of a deadline for applying for work authorization and costing him his “dream job” in New York and his right to remain in the United States, an error that ultimately led to his being arrested in shackles and handcuffs by U.S. immigration enforcement agents and escorted to a plane bound for Brazil, his home country. “We’re generally seeing an increase in OPT [Optional Practical Training] denials for a variety of reasons. That is causing consternation for both international students and international offices at universities. I think that international student advisers feel torn because technically it’s the student’s responsibility to make sure that applications are filed on time, and the application is technically filed by the student, not by the school, so the school cannot be making sure that all applications are filed by the students in a timely manner. Schools do their best most of the time to educate students about all aspects of OPT applications, including filing deadlines, but ultimately it is the student’s responsibility to make sure that the application is filed on time,” Mr. Yale-Loehr said. https://www.insidehighered.com/news/2021/03/19/former-international-student-who-lost-dream-job-sues-berkeley-alleging-negligence

Mr. Yale-Loehr was quoted by USA Today in “Immigration was a Scorching Topic at the Supreme Court Last Year. With Trump Gone, That’s Changed.” The article notes that “[p]ending immigration cases stemming from the Obama administration are in part a function of the years it takes for disputes to work their way through the courts. But it also underscores that many of the technical aspects of immigration enforcement don’t change much from president to president—despite the rhetoric from both parties.” Mr. Yale-Loehr said, “People may think, ‘Oh, well, now the government is always going to be trying to find ways to help immigrants’ and that’s not the case. You see that in some of these cases…where the government is still appealing to the Supreme Court on these technical but important issues.” https://www.usatoday.com/story/news/politics/2021/03/12/donald-trump-has-left-supreme-court-immigration-cases-went-him/4633025001/

Mr. Yale-Loehr will present a webinar on how to overcome immigration polarization on Friday, March 19, 2021, at 4:30 pm ET, as part of the Cornell Advocacy Project’s four-part speaker series, “Speak Now.” Mr. Yale-Loehr will discuss how issues of immigration have fractured along party lines and how that trend can be reversed. Topics include how and why immigration issues are polarized, how to advocate for those fighting within politically polarized immigration systems, and strategies for engaging in discussion with those who hold opposing views on immigration. For more information or to register, see https://ecornell.cornell.edu/keynotes/overview/K031921/

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Government Agency Links

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

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

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

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