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 1^st 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 30^th. 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 4^th, 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 9^th 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 1^st, 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.