Immigration Quick Takes — September 2021

US immigration news

October Visa Bulletin

Next month, USCIS will accept Employment-Based Adjustment of Status applications based on the October Visa Bulletin’s Dates for Filing chart. The October Visa Bulletin’s Dates for Filing advance to July 8, 2012 (EB-2) and January 8, 2014 (EB-3) for India and to September 1, 2018 (EB-2) and January 15, 2019 (EB-3) for China. All other EB-1, EB-2, and EB-3 dates are current. Final Action Dates for Employment-Based Preference Cases in the October Visa Bulletin all remain the same as the September Visa Bulletin.

USCIS Field Offices, which are the regional and local offices responsible for the final stages of green card approval, continue to focus efforts on approving as many pending applications as possible as the USCIS fiscal year ends on September 30, 2021. Applicants with pending cases should coordinate with their Parker Gallini immigration attorney to ensure that all documents, including medical exams, are ready for submission to USCIS as soon as requested.

Immigration Proposals Included in Build Back Better Reconciliation Bill

Legislative proposals included in the U.S. House Judiciary Committee’s latest markup of the Build Back Better Reconciliation bill create a pathway to citizenship for an estimated 8 million people, including Dreamers, Temporary Protected Status and Deferred Enforced Departure holders, and Farm Workers and other Essential workers; recapture unused family-based visas, Diversity Visas, and employment-based visas; and increase funding for USCIS.

The legislative proposal recaptures visas lost due USCIS’s slow processing of immigrant visa applications to restore around 500,000 unused visas. The proposal accounts for unused family- and employment-based visas authorized from fiscal years 1992 through 2021. While the majority of recaptured visas will go to family-based applicants, the proposal will help to alleviate family- and employment-based backlogs. The proposal also includes $2.8 billion to increase USCIS capacity, supporting adjudications and reducing processing backlogs.

Current Status of National Interest Exceptions

Thirty-three countries remain subject to COVID-19 travel restrictions affecting foreign nationals’ travel to the United States. The U.S. Department of State (DOS) continues to accept requests for National Interest Exceptions (NIEs) from the travel restrictions based on evolving criteria benefitting U.S. interests, such as support of critical U.S. infrastructure or direction of significant economic activity. Each consular post is responsible for processing NIEs within the post’s jurisdiction, and all approved NIEs are valid for 12 months from the date of approval when used for the same purpose for which they were granted. This 12-month period of validity also applies to newly issued NIEs. While the longer validity of NIEs is intended in part to reduce wait times for new waivers, applicants are still seeing delays of 30-60 days or longer for NIE adjudications at some consular posts. Applicants in need of a NIE should consider applying as far in advance of planned travel to the U.S. as possible. U.S. Citizens, Lawful Permanent Residents (green card holders), and foreign nationals with U.S. citizen spouses or minor children remain exempt from the travel restrictions.

Current Status of USCIS RFE Flexibility

In March 2020, USCIS announced flexibility for applicants and petitioners responding to Requests for Evidence, Notices of Intent to Deny or Revoke, and certain other requests and notices. In June 2021, USCIS announced that this accommodation extended to qualifying requests or notices issued between March 1, 2020 and September 30, 2021, inclusive. Unless USCIS extends this accommodation again this month, requests received on October 1, 2021 or after will require response by the due date listed on the notice.

Posted in Immigration Law

The Dramatic Increase in Employment-Based Green Card Availability Explained

Green Card
The past 10 months have seen significant forward movement in the backlog dates for Immigrant Visas (or Green Cards) as reported each month in the U.S. State Department’s Visa Bulletin. Since October of 2020, the EB-2 and EB-3 categories for China have advanced by 19 months and 16 months, respectively, and for India have advanced 14 months and almost 2 years, respectively.

The EB-1 category has been “Current” for both China and India since then as well. In addition, the EB-1, EB-2 and EB-3 categories have been “Current” for Mexico. This forward movement has resulted in the filing of tens of thousands of I-485 Adjustment of Status Applications by foreign nationals currently living and working in the U.S. in a nonimmigrant status who had previously been looking at multiple year waits to get to this stage in the Green Card process. While we are just now starting to see approvals of these I-485 applications, the large numbers of these cases have stressed operations at the USCIS and resulted in delays particularly in the issuance of Employment Authorization and Advance Parole documents. This article will explain the reason for this significant forward movement and provide some information about likely trends in the coming year.

As a bit of background, the United States issues a limited number of Green Cards each year. There are annual quotas both for the various types of Family-based Green Cards (480,000) and Employment-based Green Cards (140,000). In addition, there is a per country percentage limitation in each category tied to the fiscal year of the USCIS which ends on September 30th. Under these quota rules, unused Green Cards in the Family-based categories are added to the Employment-based categories and vice versa. Typically, a very large percentage of Family-based Green Cards are issued by U.S. Consulates abroad (through the Immigrant Visa application process) and a very large percentage of Employment-based Green Cards are issued by the USCIS in the United States (through the Adjustment of Status application process).

Beginning early in 2020 with the onset of the COVID-19 pandemic, U.S. Consulates around the world have either been shut down for periods of time or have been operating with limited staff. In addition, from April 23, 2020 to February 24, 2021, U.S. Consulates abroad were unable to issue Immigrant Visas in most categories due to a Trump-era Presidential Proclamation that was lifted by President Biden.

The impact of these two factors on the availability of Employment-based Green Cards was significant. 2020 and 2021 saw dramatic reductions in the issuance of Green Cards in the Family-based categories. As of February 2021, there were approximately 473,000 such cases backlogged at U.S. Consulates abroad. As a result of this significant backlog as well as the continuation of limited operations at most U.S. Consulates, the U.S. State Department (“DOS”) predicts that the issuance of Green Cards in the Family-based categories will continue to be slow through the end of the 2021 fiscal year and into 2022.

This reduction in the issuance of Green Cards in the Family-based categories has resulted in the allocation of unissued Green Cards to the Employment-based categories. In the current fiscal year (October 1, 2020 to September 30, 2021), the allocation of Green Cards in the Employment-based categories was increased by unused Green Cards in the Family-based categories from 140,000 to 262,000. It is this historic increase in available Employment-based Green Cards has driven the rapid advances in backlog dates.

According to the DOS, this trend will continue into 2022. The DOS projects that the allocation of Green Cards in the Employment-based categories will increase as a result of unused Family-based Green Cards, to 290,000 in fiscal year 2022 (October 1, 2021 to September 30, 2022) – this is more than double the regular annual allocation. While indications are that forward movement in the EB-2 and EB-3 categories for China and India will continue at a moderate pace through the end of the current fiscal year, the expectation is that there will again be rapid increases in these categories beginning in October of 2021. The Chief of the Visa Control and Reporting Division at the DOS, Charlie Oppenheim, provides a monthly livestream up-date on the movement of the visa backlog numbers on the DOS Consular Affairs YouTube channel several days after the Visa Bulletin is issued – we recommend that those interested in getting more information on this subject tune in and subscribe to this informative monthly presentation.

While all of this is good news for foreign nationals with pending Employment-based Green Card cases, the good news is tempered somewhat by the reality of processing such a large number of cases. Visa numbers that are not used by the end of a fiscal year do not automatically transfer over to the next fiscal year in the same visa category. This means that Green Card cases relying on the extra visa numbers must be approved by the end of the government’s fiscal year on September 30th. The USCIS is now allocating additional resources to process as many pending I-485 Adjustment of Status applications as possible before the end of the current fiscal year, but it is widely expected that all 262,000 available numbers will not likely be used this year. The good news is that the total number of available Green Cards in the Employment-based categories in the 2022 fiscal year will be even higher at 290,000.

Given the high volume of cases being filed as a result of the aggressive forward movement in the backlog dates, it is important that foreign nationals make sure to move their cases along as quickly and efficiently as possible. This includes making sure that I-485 applications are as complete as possible to reduce the risk of an RFE and then responding to RFEs as quickly as possible. Although caused by a tragic global pandemic, the availability of employment-based Green Cards is at an historic high and foreign nationals should keep a close watch on the movement of the backlog dates in the monthly Visa Bulletin and be prepared to file their I-485 Adjustment of Status applications as quickly as possible.

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Posted in Immigration Law

DHS Extends I-9 Flexibilities for Fully Remote Workers

remote workers

As offices nationwide closed in March 2020, the U.S. Department of Homeland Security (DHS) temporarily exempted fully remote employees from the employment eligibility verification physical inspection requirements for Form I-9 processing. At that time, DHS confirmed that employees working remotely due to COVID-19 would remain exempt from the requirements until the earlier of: 1) when the employee begins non-remote employment on a regular, consistent, or predictable basis; or 2) when DHS terminates I-9 flexibilities.

This DHS flexibility applies only to workers who were hired on or after March 20, 2020 and who are working exclusively in a remote setting due to COVID-19-related precautions. For new hires subject to these rules, employers are not required to review the employee’s identity and employment authorization documents in the employee’s presence and instead can inspect the document remotely and retain copies. Employers are required to maintain written documentation of this remote onboarding and verification, including annotating Section 2 of Form I-9 to indicate that documents were inspected remotely. Employers are later required to physically examine the documents in person and update Form I-9 accordingly once DHS terminates flexibilities or the presidential COVID-19 National Emergency declaration is terminated, whichever is earlier. If a worker begins regular, consistent, non-remote employment before either event occurs, the employer must complete the physical inspection at that time.

Since introducing this guidance in March 2020, DHS has provided near-monthly updates extending the flexibility for 30 days at a time. As of May 26, 2021, Immigration and Customs Enforcement (ICE) and DHS extended I-9 flexibility through August 31, 2021. Importantly, this guidance applies only to employers and workplaces operating remotely. Under DHS’ guidance, “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.”

Once normal in-person operations resume for a business, all employees who onboarded with remote verification must complete in person verification within three business days. If your workforce has returned to the workplace already, you should take immediate action to ensure that all required physical inspection of documents is completed as soon as feasible.

I-9 document inspection can be carried out by the employer, or any authorized representative designated by the employer. If you have any questions about I-9 compliance, please reach out to your Parker Gallini attorney.

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Posted in Immigration Law

Immigration Quick Takes – July 2021

U.S. Immigration News

National Interest Exceptions Now Valid for 12 Months and Multiple US Entries

With COVID-19 travel restrictions still in place for a number of countries worldwide, many foreign nationals traveling to the U.S. from or through restricted countries require an exception from the restrictions authorized by the U.S. Department of State (DOS). Throughout the pandemic, DOS has accepted requests for National Interest Exceptions (NIEs) from the travel restrictions based on evolving criteria benefitting U.S. interests, such as support of critical U.S. infrastructure or direction of significant economic activity. Each consular post is responsible for processing NIEs within the post’s jurisdiction, and NIEs were valid for one U.S. entry within 30 days of approval. On July 6, 2021, DOS announced that all NIE waivers issued in the last 12 months are automatically extended for 12 months from the date of approval and are valid for multiple entries, as long as they are used for the same purpose for which they were granted. This 12-month period of validity will also apply to all newly issued NIE waivers. This is a significant benefit to anyone who has already been issued an NIE waiver. In addition, it should reduce the number of NIE waiver requests at consular posts thus hopefully reducing wait times for new waivers.

DHS has Relaunched the International Entrepreneur Rule

Earlier this year, the U.S. Department of Homeland Security (DHS) relaunched the International Entrepreneur Rule (IER), allowing DHS to exercise discretionary authority to grant temporary entry for up to 30 months to foreign national entrepreneurs who provide “significant public benefit” to the U.S. through their work with a recently-formed start-up. Significant public benefit can be demonstrated through significant capital investment (over $250,000) from established U.S. investors; receipt of at least $100,000 of federal, state, or local government funding; or a combination of partial funding and compelling evidence of the potential for growth, such as the entrepreneur having a strong record of start-up success, acceptance into a reputable accelerator, or proof that the start-up has produced cutting-edge research and/or created new technologies. To qualify, an entrepreneur must own at least 10% in a start-up created in the last five years that has already done some business and must maintain at least a 5% interest over time. Additionally, an entrepreneur must play an active and role in the start-up’s operations.

IER parole is available to an entrepreneur and their dependent family members for a total of 60 months – 30 months initial admission, with one opportunity to be “re-paroled” – provided that the entrepreneur can demonstrate that the start-up has received at least $500,000 of additional funding; has generated $500,000 revenue at a 20% annual growth rate; has created at least 5 qualifying jobs; or can demonstrate comparable compelling evidence of the start-up’s continued potential for rapid growth and job creation. Only 3 entrepreneurs per start-up may receive IER parole.

IER parole is discretionary, so it can be denied or revoked by DHS based on derogatory evidence such as criminal conduct, fraud, or national security concerns. A parolee must maintain a household income of at least 400% above the current poverty level while in the U.S., which is currently about $70,000 for a two-person household. IER parole alone does not provide a green card pathway, and an entrepreneur must successfully apply for admission in another classification to remain in the U.S. after the IER parole expires.

If you believe you may qualify for IER parole and are interested in applying, please contact your Parker Gallini attorney.

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Posted in Immigration Law

USCIS Issues Policy Updates to Improve Immigration Processes

The Biden Administration has committed to reviewing current immigration regulations and policies to identify ways to improve the United States’ immigration system. Recent policy changes include broader criteria for expedited processing, more generous RFE practices, and extended work and travel authorization for green card applicants.

USCIS building

On June 9, 2021, USCIS made three significant announcements for policy changes that improve immigration services for benefit requestors.

1. USCIS Clarified and Expanded Access to Expedited Processing

USCIS considers requests for expedited processing on a case-by-case basis and has sole discretion to grant expedited processing. In recent years, USCIS has rarely granted these requests. Last week’s update to the USCIS Policy Manual provides detailed explanations of the criteria USCIS considers when expediting a benefit request, including explaining USCIS’ process for considering these requests.

The most common basis for expedite requests is severe financial loss for a company or a person. USCIS’ new guidance explains circumstances that can demonstrate severe financial loss to warrant expedited processing such as:

  • A business is at risk of failing
  • A business will lose a critical contract
  • A business will be required to lay off other employees
  • A person’s job loss will cause severe financial hardship in their individual circumstances
  • A person will lose critical benefits

USCIS confirmed that they do not generally honor expedited requests where premium processing is available, and they also will not grant expedited processing where the need for urgent action results from applicant or petitioner failure to timely file or respond to USCIS requests.

The new guidance also allows qualifying nonprofit and cultural organizations to request expedited processing where there is benefit to interests of the United States.

2. Requests for Evidence and Notices of Intent to Deny

USCIS is returning to longstanding adjudicatory practices in place from June 2013 to July 2018, which direct USCIS officers to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOID) where additional evidence could demonstrate eligibility for a requested immigration benefit.

This action included rescinding a July 2018 policy memorandum that expanded USCIS officers’ discretion to deny applications and petitions without first issuing an RFE or NOID in cases that are filed without required initial evidence. With this return to prior position, USCIS will now give benefit requestors an opportunity to correct mistakes and unintentional omissions through RFE and NOID responses.

3. Employment Authorization Documents

USCIS will begin issuing 2-year initial and renewal EADs for certain adjustment of status applicants. Increasing the validity period of these EADs from 1 year to 2 years will reduce the number of EAD applications USCIS receives, freeing up agency resources and hopefully reducing the time it now takes the USCIS to process EAD applications.

Contact your Parker Gallini attorney with any questions about the status of USCIS policy changes and any impact to your case.

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Posted in Immigration Law

Expanded Eligibility for a National Interest Exception (“NIE”) Waiver

The U.S. State Department has expanded eligibility for National Interest Exceptions to regional and country-specific COVID-19 Travel Bans

On May 27th, the U.S. State Department announced an expansion in eligibility for National Interest Exception waivers to the various regional and country-specific COVID-19 Travel Bans. Over the past year in response to the COVID-19 pandemic, the U.S. has imposed a ban on anyone traveling to the U.S. from the China, Brazil, India, Iran, the so-called Schengen countries (the countries of western Europe) and South Africa. These Travel Bans all contain a number of exceptions including for foreign nationals whose travel is in the national interest of the United States. The categories of who may apply for a National Interest Exception (“NIE”) waiver to these Travel Bans has changed over time. Since April of 2021, the State Department has allowed applications for NIEs for foreign nationals whose travel involves the provision of “vital support for a critical infrastructure” sector in the United States. However, the State Department appears to have taken a very restrictive stance on these applications. Under the April 2021 criteria, fewer NIEs were approved than were under earlier criteria based solely on economic benefit to the U.S.

The latest announcement on May 27th makes important changes to eligibility for an NIE waiver, again allowing for NIEs based on economic impact. While the category of providing “vital support for critical infrastructure” remains, a sub-category has been added for foreign nationals providing “executive direction for critical infrastructure.” In addition, the State Department has added a category for foreign nationals that provide “vital support or executive direction for significant economic activity in the United States.” This new standard will make it easier for executive-level employees to obtain an NIE waiver across industries. In addition, the reference to “significant economic activity” broadens the scope of eligibility for the waiver more generally.

We will up-date the Parker Gallini LLP web site with any changes or developments with respect to NIE waivers.

 

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Posted in Immigration Law

Biometrics Requirements Suspended for All H-4 and L-2 Applications

USCIS has announced that they will suspend biometrics requirements for all H-4 and L-2 nonimmigrants beginning on May 17, 2021. The suspension of biometrics is intended to help USCIS to aggressively address the backlog of Form I-539 and Form-I765 filings for H-4 and L-2 spouses.

biometrics imageUSCIS estimates that the current number of Form I-539s for H-4 and L-2 spouses in the backlog is approximately 123,000 and estimates that the number of Form I-765s for H-4 and L-2 spouses in the backlog is approximately 57,500. The new policy suspending biometrics will apply to any pending cases that have not already been scheduled for biometrics appointments and to new cases filed after the effective date. In addition to suspending biometrics, USCIS has also confirmed that they are focusing resources on adjudicating these applications, including dedicating approximately 120 officers to these applications and scheduling training for another 33 dedicated officers in May 2021.

The Department of Homeland Security has also withdrawn a proposed rule that would have expanded biometrics collection by removing age restrictions and requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waived or exempted the biometrics requirement. The withdrawal follows the Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, and additional administration priorities to reduce barriers and undue burdens in the immigration system.

DHS will continue to require submission of biometrics in cases where the collected information supports national security, identity management, fraud prevention and program integrity.

Posted in Immigration Law

The India Travel Ban Proclamation

Proclamation On April 30, 2021, President Biden issued a Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019, which bars entry to United States for foreign national travelers who were physically present in India during the 14-day period preceding their request for admission. The Proclamation does not apply to U.S. citizens and lawful permanent residents of the United States (Green Card holders).

In addition, the Proclamation exempts certain travelers including Crewman, Foreign Diplomats and members of the U.S. military, as well as:

  1. Any nonimmigrant who is the spouse of a U.S. citizen or lawful permanent resident;
  2. Any nonimmigrant who is the parent of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident child is unmarried and under the age of 21;
  3. Any nonimmigrant who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  4. Any nonimmigrant who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee;
  5. Any nonimmigrant whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

This Proclamation came into effect starting at 12:01am on Tuesday May 4th and will continue until it is terminated by the President.

The following are several points to note about the impact of the “India Travel Ban” Proclamation:

  • The Ban applies to foreign nationals seeking to enter the US as nonimmigrants – that is foreign nationals on temporary working visas like the H-1B, the L-1 and the B-1/B-2 Business Visitor Visa, who have been in India within the prior 14 days. It applies to the citizen of any country in the world if they travelled to India within the 14 day period.
  • Several of the exemptions from the Travel Ban listed above have potentially broad application. As an example, the 2nd exemption listed above would apply to an Indian national with a valid H-1B visa and her husband with an H-4 visa who have a child born in the US (who is thus a U.S. citizen) who is under the age of 21. Similarly, the 3rd exemption would apply to the minor and unmarried brother or sister of that U.S. citizen child.
  • The Secretary of State has identified several categories of people that will fall under the “national interest” exception to the Travel Ban (the 5th exemption listed above), which includes the following:
    • Travelers who are coming to the U.S. to provide “vital support for critical infrastructure sectors” (this includes 16 different infrastructure sectors including Healthcare, Information Technology, Communications, Energy and Finance);
    • F-1 and M-1 Students and certain academics covered by J-1 exchange visitor programs; and
    • Journalists.
  • People seeking to avoid the Travel Ban based on an argument of “national interest” must apply for a “national interest exception” waiver at their local U.S. Consulate. The rules for how to make these applications and what to include vary from Consulate to Consulate as does the time frame for getting a response, which can be as long as 60 days. Given the severity of the COVID-19 situation in India, we expect that U.S. Consulates there will be leanly staffed and that “national interest exception” waivers will take longer than usual.
  • In addition, our office has assisted a number of clients applying for a “national interest exception” waiver based on providing “vital support for a critical infrastructure sector” in other countries that are currently subject the same Travel Ban and have found that the standard for approval of an exemption in this category is very high – and that accordingly, the approval rate is low.
  • One approach that can be used to avoid the application of the Travel Ban is to travel to a third country that is not subject to a travel ban and spend 14 full days there. After this time has run (and more than 14 days has elapsed since the foreign national was in India), the traveler can then fly from the third country to the United States. Currently, the U.S. has imposed a travel ban on the Schengen countries of Western Europe, the United Kingdom and Ireland, Brazil, China, South Africa, Iran and now India.

Questions about the India travel ban? Reach out to our immigration attorneys to discuss your situation.

Posted in Immigration Law

Post-H-1B Lottery Webinar Materials

In case you missed it: On May 4, Parker Gallini hosted a webinar to discuss the immigration landscape following the FY 2022 H-1B lottery. Our webinar covered immigration alternatives for foreign national employees not selected in the lottery, including the use of student status to gain CPT work authorization, as well as updates on the latest changes in immigration policy. You can watch the video recording of the webinar below, and download the slideshow presentations on our Resources page.

 

Posted in Immigration Law

Immigration Quick Takes — April 2021

1. Fiscal Year 2022 H-1B Cap Lottery Summary 

USCIS announced on March 30th that they had received enough electronic registrations during the initial registration period to reach the fiscal year 2022 H-1B cap and had notified all prospective petitioners with selected registrations. Each year there are 65,000 regular H-1B visas available and an additional 20,000 H-1B visas reserved for individuals with U.S. Master’s degrees. USCIS has not yet released information about how many registrations were submitted.

According to USCIS, all registrations submitted will now show one of the following statuses in employer and legal representative accounts:

  • Selected – the registration was selected, and the sponsoring employer may submit an H-1B petition on the individual’s behalf before June 30
  • Submitted – the registration was not selected but will remain open until the annual H-1B cap is met through approved H-1B petitions.
  • Denied – USCIS determined that duplicate registrations were submitted for an individual and denied all registrations for that individual.
  • Invalidated – Failed Payment – The payment for the registration was declined or invalid. The registration was not included in the lottery selection.

With the lottery completed, as of April 1st USCIS has begun accepting fiscal year 2022 cap-subject H-1B petitions for registrations that were selected. They will continue accepting petitions for at least 90 days, until June 30th. Although USCIS released a new Form I-129 on March 10, 2021, they will accept prior edition dates as well as the new form, until July 1, 2021. USCIS has not announced any suspension of Premium Processing service for FY 2022 cap-subject H-1B petitions.

If you have not already, contact your Parker Gallini attorney for next steps on selected registrations. Initial reports suggest high numbers of registrations for fiscal year 2022 and lower selection rates than in last year’s lottery. If you have employees who were not selected, be sure to sign up for Parker Gallini’s webinar on May 4th, which will include more information on alternatives to cap-subject H-1Bs for employees who were not selected in the lottery.

2. Public Charge Rule Vacated 

The much-anticipated end to the 2019 “Inadmissibility on Public Charge Grounds” rule (Public Charge Final Rule) promulgated by the Trump Administration came on March 9th when the U.S. Court of Appeals for the 7th Circuit lifted its stay of the U.S. District Court for the Northern District of Illinois’ order vacating the rule. This move, which reimplemented a nationwide injunction of the Public Charge Final Rule, came after the Biden Administration’s Department of Justice announced that they would no longer be defending the controversial rule in court.

On March 11th, the Department of Homeland Security (DHS) filed a rule with the Federal Register to formally remove the Public Charge Rule from the Code of Federal Regulations.  DHS also submitted a notice that same day withdrawing the October 2, 2020 proposed rule related to the Form I-864 Affidavit of Support, which would have changed evidentiary requirements for immigrant sponsorship and made that process more burdensome for sponsors. DHS also announced that the public charge admissibility policy in place prior to the 2019 public charge rule is back in effect. This policy limits the basis for public charge findings significantly, allowing for the receipt of several important non-cash benefits including certain housing, food, and health care benefits. 

Regarding the changes, Secretary of Homeland Security Alejandro N. Mayorkas stated, “DHS closed the book on the public charge rule…DHS is committed to implementing reforms that improve our immigration system and reduce unnecessary barriers to legal immigration.

As a result of these changes, USCIS is no longer considering Public Charge information submitted to meet the requirements of the vacated Public Charge, including financial information submitted with Form I-944, Declaration of Self-Sufficiency. New petitions and applications should be submitted without providing that information. Applicants and petitioners who received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information related solely to the Public Charge Final rule do not need to respond to those requests, although they do need to respond to other aspects of any RFE or NOID.

Effective March 9th, applicants filing Form I-485 for adjustment of status no longer need to submit Form I-944, Declaration of Self-Sufficiency. In addition, USCIS published new form editions for relevant forms to remove questions related to the public charge rule. These new forms have a March 10, 2021 edition date and include the following:

  • I-864, I-864A, I-864EZ, I-864W
  • I-539, I-539A
  • I-129CW, I-129CWR
  • I-129
  • I-485, I-485A, I-485J
  • I-912

Starting April 19, 2021, USCIS will only accept the new edition date for the above forms, with the exception of Form I-129. USCIS will accept previous editions of Form I-129 until July 1, 2021.

Reach out to your team at Parker Gallini if you have questions about these changes and whether your case is impacted.

3. Update on the Nonimmigrant Visa Ban

The Department of State announced on April 1, 2021 that Presidential Proclamation 10052 (“the Proclamation”) expired on March 31, 2021. This Proclamation halted issuance visas for certain H-1B, H-2B, J, and L nonimmigrants. Effective April 1st, the Department of State has resumed processing visas for individuals affected by the Proclamation. Applicants who were denied visas because of the Proclamation may reapply but will need to submit a new application and pay a new application fee.

U.S. Consulates and Embassies worldwide are reopening on a post-by-post basis and will continue to have limited visa appointment availability for some time. Consular posts are prioritizing U.S. citizen services first and are working towards a full resumption of routine visa services. Expect delays in scheduling appointments.

Contact your Parker Gallini attorney with any questions about how this impacts specific employees and their travel plans.

4. Visa Bulletin Updates and “Chats with Charlie”

The April Visa Bulletin was published in mid-March, in line with recent trends towards earlier publication of the monthly Visa Bulletin under the Biden Administration. For April, the employment-based first preference category is current across all countries of chargeability, including India and China. See full bulletin here.

The U.S. Department of State (DOS) announced the return of Charlie Oppenheim, Chief of the Visa Control and Reporting Division, to the public eye. The DOS will be hosting monthly “Chats with Charlie” as livestreams on the DOS YouTube channel. These chats will address pre-submitted and real-time questions regarding the visa bulletin and predicted trends. Recordings of the livestream and can be watched at a later date on the DOS YouTube channel, including the April Visa Bulletin review, which is currently available. Key predictions from the April Visa Bulletin include the following:

  • The EB-1 category should remain current for all countries for the remainder of the fiscal year, which runs through September 30, 2021.
  • The COVID-19 pandemic continues to impact visa issuance, particularly in the family-based categories. As a result, approximately 135,000 unused family-based visas will likely be added to employment-based visa preference categories, for a total of approximately 275,000 employment-based visas available in fiscal year 2022.
  • EB-2 and EB-3 priority dates for India and China should advance rapidly beginning in May 2021 and potentially continuing into fiscal year 2022.

Look for more updates on movement in the May Visa Bulletin soon or reach out to your Parker Gallini team with specific questions.

Posted in Immigration Law

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