1. It’s H-1B Season—Are You Ready?
In 2020, USCIS implemented an electronic registration process to obtain initial information from employers in order to conduct an electronic-based H-1B cap selection process. Instead of filing the entire H-1B petition with all filing fees during the first five business days of April and then conducting the H-1B cap selection/lottery process, USCIS changed the cap selection process to use an electronic registration system. Limited information about the employer and employee is entered into the registration system. After the registration period closes and prior to April 1, USCIS will conduct the cap selection process. This year’s electronic registration process will open on March 9 at noon EST and will close on March 25 at noon EST. Once the cap selection process has been completed, USCIS will notify all selected registrants, who can then file the H-1B cap petition between April 1 and June 30, 2021. As in years past, it is possible that the premium processing service may be temporarily suspended for H-1B cap cases. If selected and H-1B petition is eventually approved thereafter, the worker may commence temporary employment as of October 1, 2021.
Please see the following for more information about this year’s (FY2022) H-1B cap selection process:
2. USCIS Delays Implementation of H-1B Cap Wage Selection Rule Until December 31, 2021:
On January 8, 2021, USCIS published a final rule changing the H-1B cap selection process from a random selection process to a wage-level selection based process. This new rule, as detailed in our January 20, 2021 legal update, would give preference to petitions using a Level IV wage, over those with Level III, Level II and Level 1 wages. USCIS has now announced that it is reviewing this rule and implementation has been delayed until December 31, 2021. In making this announcement, USCIS stated the following:
“To give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”
USCIS also confirmed that it will use the random selection process under current rules for this year’s cap selection process beginning in March and any registration period/cap selection process before December 31, 2021. Legal challenges are also expected with this wage based H-1B cap selection rule.
Additional information from USCIS can be found at the following links:
As more information is released on this year’s H-1B cap process, our team will provide further updates. Meanwhile, If you need assistance with your case and/or have any immigration-related questions, call us toll-free at 800-223-2814, email [email protected], or contact us online.
3. Current H-2B Cap Count For The Second Half of FY 2021 at 31,591 Beneficiaries :
As of February 11, 2021, USCIS released its H-2B cap count for FY2021, stating that it has received 31,591 beneficiaries toward the 33,000 cap for the second half of FY2021, with 17,956 approved and 13,635 pending.
Note: Under the Immigration and Nationality Act (INA), as amended, there is a statutory numerical limit, or “cap,” on the total number of aliens who may receive an H-2B visa, or otherwise be granted H-2B status, during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. Unused H-2B numbers from one fiscal year do not carry over into the next fiscal year.
However, it is possible that USCIS will increase the available numbers to meet the high demand for H-2B workers, as it has done in years past. We will keep you updated.
4. United States – Entry Bans Extended Through March 31st:
On December 31, 2020, Former President Donald J. Trump extended his earlier proclamations temporarily suspending the entry of certain immigrants and nonimmigrants to the United States (U.S.) through March 31, 2021. The initial proclamations were issued on April 22, 2020 and June 22, 2020 respectively, in response to the COVID-19 pandemic, and prevent the entry of foreign nationals who would be coming into the country as immigrants and as non-immigrants under the H-1B, H-2B, J-1, and L-1 categories and their dependents, with limited exceptions.
Both the nonimmigrant and immigrant entry bans were scheduled to expire on December 31, 2020.
Ban on New Foreign Workers Left U.S. Jobs Unfilled, Even in Covid-19 Downturn:
The Trump Administration closed its doors to nearly all incoming foreign workers in April of last year by issuing multiple travel bans. The Administration used COVID-19 as a pretext for these restrictions. The issuance of work visas drastically decreased as a result. According to U.S. employers, even with skyrocketing unemployment levels in the U.S., businesses that relied on foreign workers still struggled to fill jobs as unemployed American workers were uninterested in jobs typically held by foreign hires. The labor shortage hit multiple industries. For example, many jobs in fields like information technology that would have been filled by foreign workers instead remained open or were moved overseas.
These restrictions could potentially have long lasting effects because even if the Biden Administration moves to quickly end the work visa ban, the lengthy wait for visa interview appointments in the U.S. and abroad may slow hiring for months.
Read more about this here.
Impact on Canadian Nonimmigrants:
As with the initial June 22, 2020 proclamation, Canadian citizens seeking admission to the U.S. in H, L, or J status continue to be exempt from the extended nonimmigrant entry ban.
Suspension of H, L, and J Visa Entry:
The nonimmigrant entry ban, initially put into effect on June 22, 2020, continues to affect those who meet the below criteria:
- Seeking entry under one the following nonimmigrant visa classifications:
- J-1 intern, trainee, teacher, camp counselor, au pair, or summer work travel program (note that J-1 physicians, research scholars, and students are exempt),
- L-1A, or
- Are outside of the U.S. as of 12:01AM EDT on June 24, 2020;
- Do not have a nonimmigrant visa valid on the effective date of the suspension; and
- Do not have an official document other than a visa (e.g., transportation letter, boarding foil, or advance parole document) that is valid on or after the proclamation takes effect that would allow travel to the U.S. to seek entry or admission.
Dependents of those nonimmigrants who are subject to the restriction on entry are equally restricted.
Individuals with a valid visa in one of the impacted categories that was issued prior to the proclamation taking effect will be permitted to enter the country, regardless of whether or not the visa holder previously entered the U.S. pursuant to that visa.
Exemptions to the extended nonimmigrant entry suspension continue to be limited to lawful permanent residents, spouses, and children of U.S. citizens, foreign nationals providing temporary services essential to the U.S. food supply chain, and those whose entry would be in the national interest. Additionally, some U.S. organizations and their employees may continue to benefit from the limited preliminary injunction prohibiting the U.S. Department of Homeland Security (DHS) from enforcing the nonimmigrant entry ban against the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, Intrax, Inc., and Technet.
Note: The entry suspension for certain H-1B, H-2B, J-1, and L-1 nonimmigrants may be reviewed and extended beyond March 31, 2021. The Administration is scheduled to review the extended nonimmigrant entry suspension on January 15, 2021 and every 30 days thereafter, during which any necessary modifications may be made.
Please note that foreign nationals who are exempt from the extended nonimmigrant entry ban remain subject to other COVID-related U.S. travel restrictions, which could impede their ability to enter or reenter the United States.
Extension of Entry Suspension for Certain Immigrants:
On April 22, 2020, the Trump Administration implemented a 60-day suspension restricting the entry of immigrants who did not have a valid immigrant visa or an official travel document allowing entry to the U.S. by the effective date of the suspension.
The Administration later extended the suspension on immigrants’ entry through December 31, 2020, with the possibility of a further extension.
The December 31, 2020 presidential proclamation further extends the immigrant entry ban through March 31, 2021, and the Administration is scheduled to review the extended entry ban on January 15, 2021, and every 30 days thereafter, to make necessary changes.
Note: Given the overall fluidity of the circumstances, it continues to be prudent for all nonimmigrants – not just those in the affected categories – and their dependents to remain in the U.S. and avoid international travel, where possible. This way, individuals in employment-based nonimmigrant visa categories and their dependents will not risk being unable to return to the U.S. should any further restrictions on entry be imposed by the U.S. Administration unexpectedly.
While the extended nonimmigrant and immigrant entry bans are set to be in effect through March 31, 2021, President-elect Joseph Biden has not yet addressed whether his administration will rescind or modify these bans after taking office on January 20, 2021.
5. USCIS Form I-9 Update: Completing Form I-9 for Employees With Extended Work Authorization Under DACA:
When completing Form I-9, Employment Eligibility Verification, employees may choose to present their unexpired Form I-7656, Employment Authorization Document (EAD), showing Category code C33, issued on or after July 28, 2020, along with an I-797 Extension Notice issued by USCIS that shows a one-year extension of their deferred action and work authorization under Deferred Action for Childhood Arrivals (DACA).
6. Circuit Judge Rules That Warrants or Reasonable Suspicion Are Not Needed for Basic Border Searches of Electronic Devices:
A US appeals court ruled that Customs and Border Protection agents can conduct in-depth searches of phones and laptops, overturning an earlier legal victory for civil liberties groups. First Circuit Judge Sandra Lynch declared that both basic and “advanced” searches, which include reviewing and copying data without a warrant, fall within “permissible constitutional grounds” at the American border.
The ACLU expressed dissatisfaction with the outcome. “Warrantless and suspicionless electronic device searches can give border officers unfettered access to vast amounts of private information about our lives,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project. “We are disappointed with the ruling and evaluating all options to ensure we don’t lose our privacy rights when we travel.”
7. President Biden Reinstates DED for Eligible Liberians:
On Jan. 20, 2021, President Biden issued a memorandum directing the secretary of Homeland Security to reinstate Deferred Enforced Departure (DED) for eligible Liberians and to provide for continued work authorization through June 30, 2022.
Eligible Liberian nationals (and persons without nationality who last habitually resided in Liberia) covered under DED as of Jan. 10, 2021, may remain in the United States through June 30, 2022. USCIS will automatically extend employment authorization documents (EADs) with a March 30, 2020, or Jan. 10, 2021, expiration date through June 30, 2022, for eligible individuals covered under DED for Liberians. A notice in the Federal Register has information on this automatic extension and instructions on how Liberians can obtain new EADs if they so desire.
Reinstating DED for Liberians will also allow additional time for eligible Liberians to apply for adjustment of status on or before Dec. 20, 2021, under the extension of the Liberian Refugee Immigration Fairness (LRIF) provision.
8. DHS Announced Process to Address Individuals in Mexico with Active MPP Cases:
Beginning on February 19, the Department of Homeland Security (DHS) will begin phase one of a program to restore safe and orderly processing at the southwest border. DHS will begin processing people who had been forced to “remain in Mexico” under the Migrant Protection Protocols (MPP). Individuals should not take any action at this time and should remain where they are to continue to await further instructions. The DHS will soon announce a virtual registration process that will be accessible from any location and will provide additional information about where and when individuals should present themselves.
9. New Edition and New Filing Address for Form I-690:
On Jan. 29, USCIS published the 07/23/20 edition of Form I-690, Application for Waiver of Grounds of Inadmissibility, and changed the filing location. Applicants previously filed this form at the USCIS Chicago Lockbox. Now they must send the form to the USCIS Dallas Lockbox. For more information, please see the Edition Date and Where to File sections of USCIS Form I-690 page.
10. NY Immigration Courts Update:
Certain immigration courts have resumed non-detained hearings. Hearings in non-detained cases at courts without an announced date are postponed through, and including, March 19, 2021. Click on the above map for the latest operational status of courts nationwide. For case-specific information, visit the Automated Case Information portal.
11. PPID On TV:
Last week, a Long Island family was reunited after the father of three small children was released from ICE custody. He had spent more than eight months in federal detention centers in Louisiana and New Jersey, and was on the verge of deportation when a federal judge issued a temporary stay of removal in his long-pending immigration case.
Mr. Singh, 47, an immigrant from India, has resided in the United States since 1993 and is married to a U.S. citizen since 2014. The couple has 3 small children, all born in the United States, including the 8-year-old seriously disabled Ashmeet.
Pollack, Pollack, Isaac & DeCicco was retained to represent Mr. Singh soon after his incarceration to forestall his imminent removal from the U.S., and to gain his release from detention. Despite the extreme complexity of Mr. Singh’s case, and following numerous legal setbacks, PPID persevered and ultimately was successful in convincing ICE to exercise favorable discretion in his case, and he was freed from immigration custody.
On Tuesday, he was finally able to return to his modest home in Long Island, celebrating a joyous reunion with his tight-knit family. Mr. Singh will now continues his quest to obtain his lawful permanent residence in the U.S. from the comfort of his home with his family by his side.
Watch Mr. Singh’s Story Coverage on: PIX11, NEWS12 and ABC7.