As the H-1b lottery/cap filing season is underway, many employees that are working on OPT or STEM OPT will be taking advantage of the cap-gap rules which generally allow a person that was chosen in the H-1b lottery and who has timely filed a petition to continue working until Oct 1st even though their EAD card has expired. Last week, new cap-gap procedural rules were released by ICE changing how schools will update SEVIS records. If you are in charge of updating I-9’s in cap-gap scenarios, check this new rule out.
Category: Government Agency Actions – USCIS, ICE, etc.
The Department of State has released the April Visa Bulletin and the Final Action Date chart continued to show steady forward movement across all categories and countries with established cut-off dates. All EB1 countries moved to current and both India and China EB2 and EB3 categories saw jumps of several months. The USCIS has yet to announce whether they will accept the Dates for Filing chart for 485’s in April. We will update this information as it becomes available. The big bonus contained in this month’s Visa Bulletin was the announcement of “Chats with Charlie” and a YouTube channel dedicated to the Visa Bulletin. We encourage you to check out this months Chat here. The good news this month was a prediction that in FY 2022, the DOS expects a total of 275,000 visas to be available for employment based side due to a mixture of the Visa Ban and COVID19. (see posts from 2-26-2021 and 9-24-2020 if you want more info. on this). In FY2021, there was a total of 262,000 visas available and the priority dates jumped multiple years at the beginning of the fiscal year on 10-1-2020. We expect the same this coming fall. There are a number of practical implications of this for both employers and international employees. For international employees, this means getting a green card much sooner than expected which is great news but, it also means finding a stable employment situation and staying where you are. For employers, this will mean less talent in the pool willing to move for the next 12-18 months. Expect to need to make adjustments to your immigration policies immediately.
Last week, the USCIS announced that it would entertain Motions to Re-open/reconsider (MTR’s) on denials of H-1b petitions that were based on one of three memos that have since been rescinded either by Federal Court order or by USCIS action. The relevant memos are: computer programmer memo from 3-31-2017; the employer-employee relationship memo dated 1-8-2010 (commonly referred to as the Neufeld memo); and, the contracts memo dated 2-22-2018. Although there are many denials based upon one of theses three memos, it is likely that this action will provide limited relief as a practical matter. Most denials resulted in new filings or the beneficiary moved onto another opportunity or left the U.S. and the opportunity as presented in the petition is unlikely to remain. The most common scenario that may warrant re-visiting is for US grads who may still be on some form of student employment i.e. STEM OPT or CPT and have a denial from a prior cap lottery filing. In spite of the limited applicability, we applaud the efforts of the Biden Administration to offer the opportunity to correct an error based upon the faulty and/or illegal policies enacted by both the Trump and Obama Administrations. If you have any cases that you think may warrant review, please reach out to your HNM attorney for assessment.
The USCIS has announced that they will no longer apply the Public Charge Rule introduced by the Trump Administration but, will revert back to the rule that was in effect prior to October of 2019. A summary of the rule that will now be applied can be found here. As a practical matter, this means that the 944 will not be required when filing I-485 applications and certain portions of the I-129 and I-539 need not to be completed. A summary of the changes can be found at the USCIS public charge web-page.
The USCIS has recognized the difficulties that students are having as a result of delays in the issuance of I-765 receipts, the processing of 765 applications and the actual production of EAD cards so they have provided some relief. The steps taken by the USCIS will allow students to take full advantage of the 12 mo. period of OPT employment as opposed to being issued a shortened period due to processing delays. They also provided some refiling options following a lockbox rejection and other measures. You can review the new policy here.
The White House released a proclamation that revoked the Trump Immigrant Visa Ban (Proclamation 10014). What may appear to be good news for US employers and those seeking to immigrate to the US, is in reality, only good news for family based immigrants but, bad news for employer sponsored immigrants. The immediate impact on employment based visas is limited. Very few immigrant visas are issued by US Consulates with the overwhelming majority of those obtaining immigrant visas (green cards) via employer sponsorship using the I-485 procedure and Proclamation 10014 did not cover I-485 adjustments. The exception is international RN’s who traditionally are issued immigrant visas by a US Consulate however, healthcare workers were generally exempted from Proclamation 10014 resulting in RN’s not being impacted. The impact will be seen later this fall in the number of Immigrant Visas allocated to Employment Based categories for FY 2022 which will only be known in Oct of 2021. For FY 2021, there were approximately 120,000 additional immigrant visas allocated to the employment based categories from unused family based numbers due in major part to Proclamation 10014. With the lifting of the Immigrant Visa ban, it is projected that we will not see such an infusion of additional visas in Oct of 2021. Revoking the Immigrant Ban is a good decision by President Biden and in principle, the right action to be taken but, there will be negative consequences.
The USCIS has announced that E3 petitions are now eligible for premium processing. This is welcome news given the current travel issues as a result of COVID-19, requiring many E3 petitions to be processed by the USCIS rather than by US Consulates in Australia or Canada. The processing time for E3 petitions had soared to over a year, in many cases. The filing fee for premium processing is $2500.00. The USCIS is in an enviable position wherein they were able to create demand by providing poor service and then charge a large additional fee to complete their task.
The USCIS has again decided to extend the additional 60 day extension for responding to RFE’s, NOID’s, NOIR’s and other notices. The new extension is valid until March 31, 2021. The USCIS has a web-page dedicated to accommodations they have made due to COVID-19.
Today, the Senate confirmed Alejandro Mayorkas to head the Department of Homeland Security (DHS). The USCIS operates under the DHS. Secretary Mayorkas is the first confirmed leader of DHS in almost 2 years as President Trump refused to send his interim appointees in front of the Senate. Secretary Mayorkas was previously the head of USCIS during the Obama Administration. For more information on Secretary Mayorkas, here is a good summary.
U.S. Immigration and Customs Enforcement (ICE) today announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. The Department of Homeland Security (DHS) will extend this policy until March 31, 2021. On March 19, 2020, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Form I-9 completion requirements under section 274A of the Immigration and Nationality Act. This policy only applies to employers and workplaces that are operating remotely. NOTE: 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. Any questions, please reach out to your HNM attorney.