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  • Ashenberg Law Group

April 2021 Newsletter

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1. April 2021 Visa Bulletin: Advancement in Most Employment-based Categories; Slow Advancement in Family-based Categories

The U.S. Department of State’s (DOS) released the Visa Bulletin for April 2021, which shows advancement in most employment-based categories, and slow advancement in family-based categories. The cutoff dates for issuance of employment-based immigrant visas are as follows:

  • EB-1: All countries are current.

  • EB-2: China advanced 7 weeks to September 1, 2016; India advanced 15 weeks to May 1, 2010. All other countries are current.

  • EB-3 Professional and Skilled Workers: China advanced 5 weeks to March 15, 2018; India advanced 2 months to September 1, 2010. All other countries are current.

USCIS will accept adjustment of status applications for all employment-based cases and F2A Spouses and Minor Children of Green Card Holders based on the “Final Action Dates” charts, and all other family-based cases based on the “Dates for Filing” charts.

The April 2021 Visa Bulletin can be found here.

2. H-1B Updates

USCIS Completes the FY 2022 H-1B Initial Electronic Registration Selection Process

On March 30, 2021, USCIS announced that it has received enough electronic registrations to reach the H-1B regular cap of 65,000, and the H-1B U.S. advanced degree exemption (i.e. master’s cap) of 20,000, for the FY 2022 H-1B Cap Season.

USCIS has also completed the random selection process for properly submitted and timely filed registrations, and has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap petition for the specified beneficiary.

A Petitioner with a valid selected registration notice must file their H-1B cap-subject petition for the named Beneficiary during the listed filing window beginning on April 1, 2021, and at the Service Center indicated on that notice, or USCIS will reject or deny the petition.

USCIS’ alert can be found here.

USCIS To Reopen Certain H-1B Petitions Denied Under Three Rescinded Policy Memos

On March 12, 2021, USCIS announced that it may reopen and/or reconsider H-1B petitions denied under three (3) rescinded policy memos.

The 3 rescinded policy memos include:

  • Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements

  • Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites

  • Guidance memo on H-1B computer-related positions

Petitioners should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant Labor Condition Application (LCA) before requesting USCIS reopen and/or reconsider adverse decisions based on the 3 rescinded policy memos.

USCIS’ alert can be found here.

3. USCIS Extends Flexibility for Responding to Agency Requests

On March 24, 2021, USCIS announced that it is extending its flexibility for applicants and petitioners responding to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), Notice of Intent to Revoke (NOIR), Notice of Intent to Terminate (NOIT) regional investment center, as well as filing date requirements for Notice of Appeal or Motion, etc., dated between March 1, 2020 and June 30, 2021, inclusive, USCIS will consider responses submitted within 60 calendar days after the response date set forth in the notices.

USCIS’ alert can be found here.

4. DHS Public Charge Rule Invalidated as Biden Administration Drops Lawsuit Appeals

On March 9, 2021, DHS Secretary Alejandro N. Mayorkas announced that the government will no longer defend the 2019 Public Charge Rule, as doing so is neither in the public interest nor an efficient use of limited government resources. As of March 9, 2021, the DHS public charge rule is no longer in effect.

The Department of Justice has dismissed pending appeals in the Supreme Court and Seventh Circuit.

This means that the 1999 interim field guidance on the Public Charge inadmissibility provision (i.e., the policy that was in place before the 2019 public charge rule) is now in effect. Under the 1999 guidance, “public charge” means a foreign national who has become or is likely to become primarily dependent on the U.S. government either by the receipt of cash assistance for income maintenance or by institutionalization for long-term care at U.S. government expense. Also, under the reinstated policy, the public charge inquiry is not applied to nonimmigrant extensions of stay and change of status applications.

Adjustment of status applicants are no longer required to submit Form I-944 declarations of self-sufficiency and related documentation, and beneficiaries and/or applicants of nonimmigrant visa extensions and change of status applications are no longer required to respond to questions about their receipt of public benefits.

DHS’ alert can be found here and here.

5. USCIS Extends Certain Flexibilities to OPT and STEM OPT Applicants

On February 26, 2021, USCIS announced it is extending certain flexibilities to F-1 students seeking Optional Practical Training (OPT) who filed Form I-765 Work Authorization applications between October 1, 2020 and May 1, 2021, inclusive.

USCIS will apply the following relaxed policies to F-1 OPT applications received between October 1, 2020 and May 1, 2021 (inclusive):

  • 14-month OPT Period Flexibilities: F-1 students will be permitted to complete their post-completion 12-month OPT within 14 months of their EAD approval date, instead of their F-1 program end date. Those who receive an OPT approval for less than the full amount of time may request a correction from USCIS.

  • Refiling After Rejection: F-1 OPT and STEM OPT applicants must file applications during certain timeframes. However, due to lockbox delays, some timely filed applications that were later rejected are unable to timely refile within the required application timeframes. USCIS is allowing these applicants to refile. Refiled applications must be received by May 31, 2021 for USCIS to treat them as filed on the original received date.

  • Missing or Deficient Signatures: USCIS will issue an RFE instead of immediately rejecting F-1 OPT or STEM OPT applications that contain missing or deficient signatures. This gives applicants the opportunity to respond and provide the necessary signature or correct the deficiency. However, the USCIS policy permitting rejection of applications with missing or deficient signatures remains in place, so applications should be checked for sufficient signatures prior to filing.

These accommodations are in response to significant delays in the issuance of receipt notices for F-1 EAD applications, which in some instances, have led to shortened or loss of OPT periods and improper rejections.

USCIS’ alert can be found here.




Further Extension of Restrictions on US-Canada and US-Mexico Borders Until April 21, 2021

In order to limit the further spread of the coronavirus, on March 21, 2020, the U.S. reached agreements with both Canada and Mexico to limit all non-essential travel across borders. These joint initiatives were originally set to be in place for 30 days, subject to reevaluation and further extension in light of coronavirus pandemic developments. “Non-essential” travel includes travel that is considered tourism or recreational in nature.

On March 18, 2021, these measures were further extended until April 21, 2021, which marks the twelfth extension since implementation. These restrictions do not apply to entry through U.S. airports.

DHS’ twitter update can be found here.

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