• Ashenberg Law Group

February 2021 Newsletter

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IMMIGRATION UPDATES

1. February 2021 Visa Bulletin: Advancement in Most Employment-based Categories; Not Much Movement in Family-based Categories

The U.S. Department of State’s (DOS) released the Visa Bulletin for February 2021, which shows advancement in most employment-based categories, and not much movement in family-based categories. The cutoff dates for issuance of employment-based immigrant visas are as follows:

  • EB-1: China and India advanced 4 months to January 1, 2020. All other countries are current.

  • EB-2: China advanced 2 weeks to June 15, 2016; India advanced 4 days to October 12, 2009. All other countries are current.

  • EB-3 Professional and Skilled Workers: China advanced 18 days to January 1, 2018; India advanced 10 days to April 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 February 2021 Visa Bulletin can be found here.


2. Biden Administration Announces Regulatory Freeze and Review


On January 20, 2021, newly sworn-in President Biden signed 20 new Executive Orders and Presidential Proclamations overnight. Among them is a Regulatory Freeze Pending Review Memo directing that 1) rules still pending at the Federal Register and not yet published must be immediately withdrawn; and 2) effective dates of rules that were published on the Federal Register but are not yet effective be postponed for 60 days.


According to the memorandum, regulations that have been issued, but have yet to take effect, will be postponed for 60 days from the date of signing the memorandum (i.e. March 21, 2021). During this 60-day postponement period, the 30-day public comment period must be reopened to accept public comments. If the regulations raise substantial questions, the regulations will have to be submitted to the Office of Management and Budget Director for further consultation.


This includes a number of recently published immigration regulations, including DHS’ H-1B Cap Allocation Final Rule, and DOL’s Prevailing Wage Final Rule.


DHS’ H-1B Cap Allocation Final Rule


On January 8, 2021, DHS published a H-1B Cap Allocation Final Rule on the Federal Register that modifies the H-1B cap selection process and amend current lottery procedures.


This final rule indicates that should USCIS receive H-1B cap-subject petitions that exceed the quota, it would prioritize the selection of H-1B registrations based on corresponding wage levels, by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. This means that USCIS is replacing the random selection process with a wage-level-based selection process for H-1B cap-subject petitions.


Originally effective 60 days from the date of publication (i.e. March 9, 2021), Biden Administration’s Regulatory Freeze Pending Review Memo very likely ensures that the Wage-Based H-1B Selection System will not impact the FY 2022 H-1B cap season, providing the timeline of submitting online registrations remains the same as last year.


DOL’s Prevailing Wage Final Rule


On January 14, 2021, DOL published its revised and reissued Prevailing Wage Final Rule on the Federal Register that lifts wages for H-1B, E-3 and H-1B1 nonimmigrant cases and the PERM Labor Certification program.


Despite the public comments, the final rule still contains significant prevailing wage increases for all wage levels, though the minimums are not as high as initially sought by DOL’s October 2020 Interim Final Rule. The rule also provides a multi-year transition period intended to give employers time to meet the wage increases and make certain accommodations for H-1B workers who are pursuing employment-based permanent residence. Initial wage increases are set to begin on July 1, 2021.


However, due to the impact of the Regulatory Freeze Pending Review Memo, DOL’s Prevailing Wage Final Rule will be subject to another 30-day public commenting period in the 60-day postponement period, and might face another series of changes and updates.


The White House’s memo can be found here.


3. Court of Appeals Ninth Circuit Delays Its Decision to Bar Application of Public Charge Rule for Almost 20 States


On January 20, 2021, the U.S. Court of Appeals for the Ninth Circuit has ruled to delay the effective date of its December 2020 decision that temporarily barred DHS from enforcing the Public Charge rule in almost 20 states, including the States of California, Washington, the District of Columbia, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, and Virginia.


The Public Charge rule continues to remain in effect nationwide at this time, where adjustment of status applications must be filed with Form I-944 Declaration of Self-Sufficiency and documentation, and beneficiaries and/or applicants of nonimmigrant visa extensions and change of status applications must declare the history of obtaining public benefits, until further notice.


The I-944 is designed to collect extensive information and evidence involved in evaluating public charge inadmissibility: age, health insurance, household size, financial resources, education, and skills.


The public charge rule is being challenged in several separate ongoing lawsuits. There could continue to be quick reversals of DHS authority to implement the rule in various states or nationwide as challenges continue to seek review of the Supreme Court.


The Court Order can be found here.


4. USCIS Provides Updates on Lockbox Receipt Notice Delays


On January 8, 2021, USCIS provided additional updates about its lockbox operations and delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility.


USCIS notes that due to COVID-19 restrictions, an increase in filings, current postal service volume and other external factors, applicants may experience a delay of 4-6 weeks in receiving a receipt notice after properly filing an application or petition with a USCIS lockbox. These delays will not affect the receipt date.


Delays may vary among form types and lockbox locations. Applicants filing for non-family-based green cards, or F-1 international students filing for OPT or STEM OPT Employment Authorization Documentations (EADs) may experience significant delays.


USCIS’ alert can be found here.


5. USCIS Replaces Sticker That Extends Validity of Green Cards


On January 12, 2021, USCIS announced that starting in January, it will replace the I-551 sticker with a revised Form I-797, Notice of Action to extend the validity of their green cards. The I-551 sticker is currently issued to lawful permanent residents (LPRs) to temporarily extend the validity period of their expiring green cards after filing Form I-90, Application to Replace Permanent Resident Card.


The revised I-797 notice, together with the applicant’s Green Card, will extend the Green Card’s validity for 12 months from the Green Card’s expiration date and will serve as temporary proof of the LPR’s status.


USCIS’ alert can be found here.


6. USCIS Extends Flexibility for Responding to Agency Requests


On December 18, 2020, 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 January 31, 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.

OTHER ANNOUNCEMENTS & UPDATES

ALG’s Free Webinar “Navigating Business Immigration in 2021: What to Expect Under the New Administration as Foreign Workers and Students” A Success


On January 20, 2021, ALG successfully hosted a free 1-hour online webinar on the topic “Navigating Business Immigration in 2021: What to Expect Under the New Administration as Foreign Workers and Students”. ALG’s experienced immigration attorney Zhixian (Jessie) Liu, Esq. discussed potential changes to the immigration landscape during COVID and under the new administration in 2021, covering topics including changes to the H-1B registration selection process according to wage level, the impact of Trump administration’s immigration regulations and policies for foreign workers and students, and Biden administration's priorities for employment-based immigration.


During the webinar, many attendees actively asked questions and interacted with our attorney.


ALG is closely monitoring changes in U.S. immigration and will provide further updates and webinars on this and other topics as developments occur.


CDC Requires Negative COVID-19 Test for All Air Passengers Entering the U.S. Beginning January 26, 2020


On January 12, 2021, the Centers for Disease Control and Prevention (CDC) ordered that starting January 26, 2021, airline passengers departing from any foreign country to the U.S. must first provide either a negative COVID test or documentation of COVID recovery in order to be permitted to board an aircraft. The new requirement applies to all airline passengers 2 years old and older.


The order is scheduled to expire on December 31, 2021 unless there is an earlier determination that rescinds or revises the order.


The order does not supersede the regional COVID-19 public health bans applicable to certain foreign nationals present in China, Iran, the Schengen Area, the U.K., Ireland, and Brazil 14 days prior to entry into the U.S.


CDC’s alert can be found here.


Further Extension of Restrictions on US-Canada and US-Mexico Borders Until February 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 January 12, 2021, these measures were further extended until February 21, 2021, which marks the tenth extension since implementation. These restrictions do not apply to entry through U.S. airports.


DHS’ twitter update can be found here.