In this issue
- USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions
- FY 2022 H-1B Visa Registration Period Starts March 9
- DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May
- USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions
- Alejandro Mayorkas Confirmed To Lead Department of Homeland Security
- Biden Signs Immigration-Related Executive Orders
- USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction
- OFLC To Reissue Certain Prevailing Wage Determinations
- February Visa Bulletin Announces Green Card Projections for the Coming Months
- Judge Rules STEM OPT Program Lawful
- USCIS Extends Flexibility for Responding to Agency Requests
- President Biden Issues Executive Order Revoking Trump "Buy American and Hire American" Executive Order
- ICE Extends I-9 Compliance Flexibility
- President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info
- President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers
- DHS Extends Canada-U.S.-Mexico Border Restrictions
- USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities
USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of a final rule that changed the selection process for cap-subject H-1B petitions. The rule would essentially eliminate the lottery process to give priority to higher wage offerings. The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B filing season this March.
For the upcoming H-1B cap lottery, USCIS will use the current regulations and selection process (random selection) to select registrations submitted during the filing window of March 9 to March 25, 2021. The H-1B lottery process saw significant changes last year, with the implementation of a pre-registration process.
- Read the "DHS Delays Effective Date of H-1B Selection Final Rule," Feb. 4, 2021
- Read the "Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date," USCIS, Feb. 8, 2021, Federal Register
- Read the "USCIS Modifies H-1B Selection Process to Prioritize Wages," USCIS, Jan. 7, 2021
FY 2022 H-1B Visa Registration Period Starts March 9
U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021. Representatives and registrants must wait until March 9 to create and submit H-1B registrations.
USCIS explained that prospective petitioners (registrants) must use a "registrant" account within myUSCIS to submit their registrations. Registrants will not be able to add more information after they select "I am an H-1B registrant" account type until the initial registration period opens. Petitioners submitting their own registrations will enter their company information as part of their first H-1B registration. Petitioners working with a representative will review company information that the representative enters before submitting the registration for each prospective beneficiary.
Representatives can create an account at any time by using the same kind of account already available to representatives. Representatives who already have a representative account may use that account; they do not need to create a new account, USCIS said.
USCIS has released instructions and a video on how to set up an account and register (link below).
- Read the "H-1B Electronic Registration Process," USCIS, (scroll down to "Step-by-Step Instructions" for video)
- Read "H-1B Visa Registration for 2022 to Begin on Mar. 9, Lottery Results to be Notified by Mar. 31," Economic Times
DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May
The Department of Labor's Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, "Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States." The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay "will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise."
Comments may be submitted until February 16, 2021.
USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions
On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, "Rescission of the December 22, 2000 'Guidance memo on H-1B computer related positions.' " USCIS said its officers should not apply the rescinded memo "to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification," and that further guidance is forthcoming.
USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS's denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure "consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142," the new USCIS policy memorandum said.
Alejandro Mayorkas Confirmed To Lead Department of Homeland Security
The U.S. Senate confirmed Alejandro Mayorkas as Secretary of Homeland Security on February 2, 2021, making Mr. Mayorkas the first immigrant and first Latino to serve in that role.
Mr. Mayorkas comes from a 30-year career as a law enforcement official and a nationally recognized lawyer in the private sector. He served as Deputy Secretary of the Department of Homeland Security (DHS) from 2013 to 2016, and as Director of U.S. Citizenship and Immigration Services from 2009 to 2013. During his tenure at DHS, he led the development and implementation of Deferred Action for Childhood Arrivals, negotiated cybersecurity and homeland security agreements with foreign governments, led the agency's response to Ebola and Zika, helped build and administer the Blue Campaign to combat human trafficking, and developed an emergency relief program for orphaned youth following the January 2010 earthquake in Haiti. He also created the Fraud Detection and National Security Directorate.
Mr. Mayorkas began his government service in the Department of Justice, where he served as Assistant United States Attorney in the Central District of California, specializing in the prosecution of white-collar crime. After nearly nine years as a federal prosecutor, he became a U.S. Attorney.
Mr. Mayorkas received a bachelor's degree with distinction from the University of California at Berkeley and a law degree from Loyola Law School.
Biden Signs Immigration-Related Executive Orders
President Biden recently signed several immigration-related executive orders to:
- Develop a strategy to address irregular migration across the southern border and create a humane asylum system. The Biden administration said it will address the underlying causes of migration; collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up asylum seekers' and migrants' protection and opportunities closer to home; and ensure that Central American refugees and asylum seekers have access to legal avenues to the United States. The order also directs the Secretary of Homeland Security to review the Migrant Protection Protocols program, and directs a series of actions to restore the U.S. asylum system, "including by rescinding and directing agency review of a host of Trump Administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers."
- Restore the U.S. refugee admissions program. This order launches administrative reform efforts with a goal of increasing refugee admissions to 125,000 in the first full fiscal year of the Biden administration, and proposing a raise in refugee admissions for this fiscal year after consulting with Congress. Among other things, the order will expand refugee adjudication capacity and review the current Special Immigrant Visa program for Iraqis and Syrians.
- Elevate the role of the White House in coordinating the federal government's strategy to promote immigrant integration and inclusion. This order includes re-establishing a Task Force on New Americans, and "ensuring that our legal immigration system operates fairly and efficiently." The order requires agencies to review "recent regulations, policies, and guidance that have set up barriers to our legal immigration system" and "rescinds President Trump's memorandum requiring family sponsors to repay the government if relatives receive public benefits, instructs the agencies to review the public charge rule and related policies, and begins a review to streamline the naturalization process."
- Create a task force to reunify families. This task force will work across the U.S. government, with "key stakeholders and representatives of impacted families," and with "partners across the hemisphere to find parents and children separated by the Trump Administration." The task force will make recommendations on next steps for reunification, and "to prevent such tragedies from occurring again," and will report regularly to the President.
- Read the "Fact Sheet: President Biden Outlines Steps to Reform Our Immigration System by Keeping Families Together, Addressing the Root Causes of Irregular Migration, and Streamlining the Legal Immigration System," White House, Feb. 2, 2021
- Read "Fact Sheet: President Biden to Sign Executive Actions Restoring America's Place in the World," White House, Feb. 4, 2021
- Read "Biden Signs Immigration Executive Orders and Establishes Task Force to Reunite Separated Families," CNN, Feb. 2, 2021
USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction
U.S. Citizenship and Immigration Services (USCIS) will continue to abide by previous filing fee amounts because of preliminary injunctions in ILRC v. Wolf and Nw. Immigrant Rts. Project v. USCIS. USCIS said it is complying with the terms of these orders and "is not enforcing the regulatory changes set out in the Final Rule. USCIS will continue to accept the fees that were in place prior to October 2, 2020, and follow the guidance in place prior to October 2, 2020 to adjudicate fee waiver requests."
OFLC To Reissue Certain Prevailing Wage Determinations
On January 20, 2021, a U.S. district court issued a modified order governing the manner and schedule in which the Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) will reissue certain prevailing wage determinations (PWDs) that were issued from October 8, 2020, through December 4, 2020, under the wage methodology for a related DOL interim rule issued in October, and at the request of employers under the H-1B, H-1B1, and E-3 temporary programs and PERM labor certification program.
OFLC said DOL is taking necessary steps to comply with the modified order issued by the district court. Accordingly, OFLC will reissue certain PWDs issued under the interim final rule in two phases: high priority (within 15 days of receiving the requested list of named plaintiffs from plaintiffs' counsel) and emergency situations (by March 2, 2021).
Employers that have already submitted a request in response to a December 3, 2020, announcement posted by OFLC have been issued a PWD and do not need to resubmit a second request for reissuance or take other additional action, OFLC said.
February Visa Bulletin Announces Green Card Projections for the Coming Months
The Department of State's Visa Bulletin for February 2021 included the following information on final action date projections (potential monthly movement) for employment-based green card categories through May. The bulletin notes that determination of the actual monthly final action dates is subject to fluctuations in applicant demand and other variables affecting processing:
China: Up to six months
India: Up to six months
China: Up to three weeks
India: Up to two weeks
China: Up to one month
India: Up to three weeks
Current for most countries
El Salvador, Guatemala, and Honduras: Up to three months
Mexico: Up to one month
Will remain Current for most countries
China: No forward movement
Vietnam: Up to three weeks
Judge Rules STEM OPT Program Lawful
On January 28, 2021, a U.S. district court judge issued a summary judgment order finding that the STEM OPT (Optional Practical Training for science, technology, engineering, and mathematics students) program is a valid exercise of authority under the Immigration and Nationality Act. This means that both the 12-month OPT and STEM OPT extension programs are lawful.
The plaintiff, Washington Alliance of Technology Workers, has appealed.
USCIS Extends Flexibility for Responding to Agency Requests
U.S. Citizenship and Immigration Services (USCIS) announced on January 28, 2021, that it is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.
Included are Requests for Evidence and Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant. In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 60 calendar days from the issuance of a USCIS decision, and the agency made that decision between March 1, 2020 and March 31, 2021, inclusive.
President Biden Issues Executive Order Revoking Trump "Buy American and Hire American" Executive Order
On January 25, 2021, President Biden issued an executive order, "Ensuring the Future Is Made in All of America by All of America's Workers." The order states that the federal government should "maximize the use of goods, products, and materials produced in, and services offered in, the United States." It also revokes several Trump administration orders, including "Buy American and Hire American" (Executive Order 13788, April 18, 2017). U.S. Citizenship and Immigration Services used that executive order as a justification to issue several restrictive immigration policy changes.
ICE Extends I-9 Compliance Flexibility
U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibilities in rules related to Form I-9 (Employment Eligibility Verification) compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.
About a year ago, the Department of Homeland Security deferred physical presence requirements associated with the I-9 process. The policy applies only to employers and workplaces operating remotely.
President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info
On January 25, 2021, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.
U.S. citizens and lawful permanent residents are not subject to the proclamations. Exceptions also include foreign diplomats traveling to the United States on A or G visas; air and sea crew traveling to the United States on C, D, or C1/D visas; and others. For the full list of exceptions, refer to the proclamations.
The Department of State also released a listing with descriptions of previous COVID-19-related Presidential Proclamations that remain in force.
- Read the "Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease," Presidential Proclamation, Jan. 25, 2021
- Read the "Presidential Proclamations on Novel Coronavirus," Department of State, Jan. 26, 2021
President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers
On January 21, 2021, President Biden signed an executive order to implement public health measures "consistent with CDC [Centers for Disease Control and Prevention] guidelines on public modes of transportation and at ports of entry to the United States."
Among other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers. The order calls for an assessment of alternative measures (e.g., testing, self-quarantining) for travelers entering the United States from countries where COVID-19 tests are inaccessible, "particularly where such inaccessibility of tests would affect the ability of United States citizens and lawful permanent residents to return to the United States."
The order also calls for diplomatic outreach to the governments of Canada and Mexico regarding public health protocols for land ports of entry.
DHS Extends Canada-U.S.-Mexico Border Restrictions
DHS Extends Canada-U.S.-Mexico Border Restrictions
The Department of Homeland Security (DHS) extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021. The restrictions suspend entry via land border, ferry crossing, passenger rail, or coastal ports of entry from Canada and/or Mexico for pleasure boat travel of immigrants and nonimmigrants, including any travel that is not deemed essential. The restrictions do not apply to air, freight rail, or sea travel.
The determination of essential travel is at the discretion of the port of entry and exceptions to the restrictions include U.S. citizens and lawful permanent residents returning to the United States, individuals traveling for medical purposes and to attend educational institutions, individuals traveling to work in the United States, and other reasons.
- Read the "Temporary Travel Restrictions to Land Border and Ferries Between the United States, Canada and Mexico," U.S. Customs and Border Protection
USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities
U.S. Citizenship and Immigration Services (USCIS) announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox. The agency said a variety of factors were to blame, including "COVID-19 restrictions, an increase in filings, current postal service volume and other external factors." Among other things, USCIS said there may be "significant delays" in receipt notices for Form I-765, Application for Employment Authorization, based on categories related to F-1 students.
USCIS said its lockbox workforce was working extra hours and redistributing its workload to minimize delays. "We do not anticipate any receipting delays that would result in a payment that is past its validity date," the agency said. For those who have not yet filed an application, USCIS recommends filing online if possible, creating a USCIS online account to check case status, and completing a Form G-1145, E-Notification of Application/Petition Acceptance to request a text message and/or email when USCIS accepts the form via a lockbox.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: