USCIS Cap Registration Closes on March 25

Next Thursday, March 25, at 12:00 p.m. EDT will mark the close of USCIS’ registration period for the FY2022 H-1B lottery. By March 31, selected registrants will be notified if they have been selected into the H-1B lottery and are eligible to file an H-1B petition.

Over the next week, our firm will continue to prepare registrations and complete the “handshake” protocol with employers in order to complete the final steps of the H-1B registration process. We will send a confirmation email once the registration has been submitted.

As we approach the registration deadline, there is still time to enter additional registrants. Please contact a member of our legal team if your company would like to add additional registrants to this year’s H-1B cap registrations. We would be happy to answer any questions as we approach the conclusion of the registration period, but we need to be notified of any additions as soon as possible.

And if you still seek information regarding the process, Managing Partner David Brown held multiple webinars on the cap registration process and the latest recording is available here under the “Previous Webinars” tab. We also provide additional information in our annual memo and our H-1B page.

DHS Removes Final August 2019 Public Charge Rule from Regulation

On March 15, the Department of Homeland Security published a final rule removing the regulatory text associated with the August 2019 public charge rule (“Public Charge Final Rule”) and restored the previous policy that had been in effect since 1999. The publication of the new rule followed President Biden’s February 2021 Executive Order (14012) directing a complete review of immigration policies, especially the Public Charge Final Rule, and the Department of Justice’s decision to stop defending the rule. The Public Charge Final Rule had broadened how USCIS and the DOS determined whether a foreign national applying for admission or adjustment of status is inadmissible if the foreign national is deemed a public charge or likely at any time to become a public charge; it had enacted stricter financial requirements for adjustment or admission into the United States which many criticized as a “wealth test.”

Beginning on March 9, applicants and petitioners are no longer required to provide information relating to the August 2019 Public Charge Final Rule. If applicants or petitioners have already provided such information, USCIS will not consider the information if it solely relates to the Public Charge Final Rule. Likewise, if applications or petitioners received a Request for Evidence or a Notice of Intent to deny solely on the Public Charge Final Rule, and the response is due on or after March 9, 2021, the requested information does not need to be provided if it is solely required by the Public Charge Final Rule. We expect that this change will result in the issuance of new USCIS forms eliminating the public charge questions that were added in 2019. Additionally, we have ceased filing the I-944 and will no longer request the detailed financial information that was required under the prior regulation. Administratively, this will bring significant efficiency back to what we do when we file Adjustment of Status applications and it will hopefully help reduce some of the workload USCIS is under.

DOS Revises Guidance for National Interest Exception for Certain Travelers from the Schengen Area, U.K., and Ireland

On March 2, the Department of State (“DOS”) rescinded its previous policy granting National Interest Exceptions (NIEs) to certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents under Presidential Proclamation 10143 (PP 10143). PP 10143, which has been in effect since March 2020, suspends the entry to the U.S. any foreign nationals who were physically present in the Schengen Area, U.K., and Ireland within 14 days prior to their arrival at the port of entry into the U.S. Individuals with existing visas or NIEs will not be revoked, but the changes will be effective for visa issuance after March 2. Individuals with existing NIEs are reminded to travel within the 30-day validity period provided by the NIE.

Additionally, the DOS created a new national interest determination for certain travelers seeking to provide vital support for critical infrastructure. Though “Critical infrastructure” was not explicitly defined by the revised guidance, certain sectors, as identified by DHS’s Cybersecurity Infrastructure Security Agency, are likely deemed “critical infrastructure” by the DOS. These sectors include communications, information technology, healthcare and public health services, food and agriculture, transportation, and energy.

The revised guidance does not impact the NIE policy for students (F and M), J-1 academic and research exchange visitors, and journalists. B, E, H, L, O, and P visa applicants and ESTA business travelers are subject. We will continue to provide updates regarding the DOS’ revised guidance as more details become available and assist those clients who may qualify under the new NIE process.

Biden Administration Lifts Immigrant Visa Ban

On February 24, President Biden lifted restrictions on the entry of immigrants into the United State under President Trump’s Presidential Proclamation 10014 (PP 10014). PP 10014, which was effective on April 23, 2020, limited the entry and immigrant visa issuance for certain foreign nationals. Critics of the proclamation asserted that it effectively blocked most legal permanent immigration into the United States. PP 10014 was initially scheduled to end on December 31, 2020, but on December 31, President Trump extended the proclamation until the end of March. As a result of the rescission of PP 10014, certain individuals may now be issued immigrant visas so that they may enter the United States as lawful permanent residents.

The DOS has provided guidance for immigrant visa applicants who have not yet been interviewed, previously refused, and for Diversity Visa 2020 and 2021 applicants. Given the duration of the immigrant visa ban, applicants will likely experience significant delays in appointment scheduling due to backlogs and existing COVID-19 restrictions.

USCIS Offers Flexibilities for Certain OPT Applicants

On February 26, USCIS announced certain flexibilities to OPT applicants for applications received on or after October 1, 2020 through May 1, 2021, inclusive, due to delays with receipt notice issuance caused by COVID-19 restrictions, a dramatic increase in filings for certain benefit requests, postal service volume and delays, and other factors. The announced flexibilities include:

• Starting the 14-month completion period on I-765 approval instead of the academic program end date;
• Allowing F-1 students to request a correction if the approval form of Form I-765 was for less than the full amount of OPT time requested (not to exceed 12 months). USCIS will issue a new corrected EAD card, at no expense to the applicant, due to USCIS error; and
• Accepting refiled OPT applications with the original filing date for applicants who timely filed Form I-765 for OPT and whose applications were later rejected and are unable to timely refile within the required application timelines.

For some OPT applicants and their employers, the announced flexibilities provide relief after many months of uncertainty. For others, who have had to leave the United States because of their inability to work, the announcement has come far too late. For these individuals, the announcement should have come much sooner. The fact that USCIS has not chosen to prioritize these cases despite significant multi-month delays, and instead offer flexibilities to attempt to restore the status quo, suggests that the agency lacks the capacity to timely process these applications moving forward. Our firm will continue to monitor USCIS processing times and provide updates.

Please contact a member of our team if you have questions about the newly announced flexibilities, OPT, or any I-9 related concerns.

USCIS Expands Premium Processing for E-3 Petitions

Starting February 24, Petitioners filing Form I-129, requesting a change of status or extension of status for E-3 classification, will have the option to request premium processing service for their petition. For an additional fee, USCIS will guarantee the processing of a petition within 15 calendar days from the date that the premium processing request is received.

The expansion of premium processing for E-3 petitions is especially beneficial for E-3 applicants who are seeking to change employers in the U.S. With premium processing, E-3s seeking to change employers, would no longer need to leave the U.S. to obtain new E-3 visas. Instead, these cases can now be processed within 15 calendar days, minimizing the employment gap between the current and new position, as opposed to waiting several months it would normally take without premium processing.

The sudden announcement of E-3 premium services led to additional questions surrounding when other process types like the H-4 (I-539), EAD (I-765), and I-140 Multinational Manager may become available for processing.

USCIS May Reconsider Cases Denied Under Rescinded Memos

On March 12, USCIS announced that it may reopen and/or reconsider adverse decisions made based on three rescinded policy memos: HQ 70/6.2.8 (AD 10-24) (employer-employee relationship); PM-602-0157 (third-party worksites); and PM-602-0142 (computer related positions). A petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos by filing Form I-129B, Notice of Appeal or Motion. Furthermore, the agency has discretionary authority to accept and reconsider untimely motions, 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. Again, these and other recent developments under the Biden administration restore hope of a policy driven, legally appropriate decision-making process within USCIS, something that was sorely lacking during the prior administration.

Please contact a member of our team if your case was denied under one of the three rescinded memos, and if you would like to explore the possibility of filing a motion to reopen/reconsider.

Visa Bulletin

The April 2021 visa bulletin made notable progress in some categories, while others remain unchanged, compared to March 2021 in terms of Final Action Dates for employment-based visa applications. EB-1 Worldwide remains current. EB-1 China becomes current for the first time since March 2018; EB-1 India becomes current for the first time since March 2018, and EB-1 Philippines remains current. EB-2 Worldwide remains current. EB-2 China has advanced to September 01, 2016 while India has advanced to May 01, 2010; EB-2 Philippines remains current. EB-3 Worldwide remains current. EB-3 China has advanced to March 15, 2018. EB-3 India has advanced to September 01, 2010, and EB-3 Philippines remains current. As a reminder, after each Visa Bulletin is published you should check with USCIS to see which chart they are accepting for that specific month.

H-1B Cap Season and Important Immigration Updates – What you Need to Know

As a reminder and to ensure all clients are aware of what to expect, feel free to listen to, or share David’s most recent H-1B Cap season presentation from March 4th HERE. This a free learning opportunity for clients and friends of the firm and it is tailored directly for HR/Hiring Managers and employees involved in filing an H-1B this year.

Best Regards,

The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **