NEWS HIGHLIGHTS FOR 2021

May 3, 2021. U.S. Citizenship and Immigration Service (USCIS) announced that it will suspend the Biometrics requirement for certain I-539 applicants for a two-year period beginning on May 17, 2021. This suspension will apply to the H-4, L-2, and E-1, E-2, and E-3 categories that are pending on May 17, 2021, as well as new applications received from May 17, 2021 through May 23, 2022.
This suspension comes as a result of a class-action lawsuit, Edakunni v. Mayorkas, filed by the American Immigration Lawyers’ Association (AILA) and Wasden Banias, LLP challenging H-4 and L-2 adjudication delays.

April 30, 2021. President Biden issued a Presidential Proclamation expanding the COVID-19 Public Health travel ban which prohibits the entry of foreign nationals who have been physically present in certain countries within 14 days of their travel to the United States. India now joins this list, which includes countries in the European Schengen Area, Brazil, China, Iran, Ireland, South Africa, and the United Kingdom. The new India travel ban takes effect on May 4, 2021 and will remain in place until terminated by the President.

The following individuals are not subject to the ban, but may be required to undergo screening and other measures upon arrival:
  • U.S. Citizens and nationals;
  • U.S. lawful Permanent Residents;
  • Spouses of U.S. Citizens and lawful Permanent Residents;
  • A foreign national who is the parent or legal guardian of an unmarried U.S. citizen or lawful permanent resident under the age of 21;
  • A foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided they are both under 21;
  • A foreign national who is the child, foster child or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States on an IR-4 or IH-4 visa;
  • A foreign national traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the COVID-19 virus;
  • A foreign air or sea crewmember;
  • Certain A, C, E-1 (TECRO or TECO employees), G, and NATO nonimmigrants or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  • A foreign national whose entry would further important U.S. law enforcement objectives;
  • A foreign national whose entry would be in the national interest;
  • Members of the U.S. armed forces and their spouses and children;
  • National Interest Exception (to be determined).

March 30, 2021. U.S. Citizenship & Immigration Service (USCIS) announced today that it has received enough electronic registrations to reach the Fiscal Year 2022 H-1B cap. USCIS has completed the random selection process and notified Petitioners.

February 5, 2021. U.S. Citizenship and Immigration Service (USCIS) announced that the initial registration period for the 2022 fiscal year (FY2022) H-1B cap will open at 12:00 noon eastern time on March 9, 2021 and run through 12:00 noon eastern time on March 25, 2021. During this authorized lottery registration period, Employers will be able to submit their lottery registrations on behalf of prospective H-1B employees. USCIS will not implement its new rule creating a 'wage-based selection process' for H-1Bs for the upcoming H-1B cap season, rather the new rule will take effect December 31, 2021.

February 5, 2021. The U.S. Citizenship and Immigration Service (USCIS) has issued a final rule which delays the newly created "wage-based lottery system" for selecting H-1B applicants. This rule sought to select H-1B lottery recipients based on the highest earning individuals. The rule has been delayed until December 31, 2021, which means that it will no longer impact the upcoming H-1B lottery season (the rule was originally set to go into effect on March 9, 2021). 
The delay rule states: “The Department is delaying the rule’s effective date until December 31, 2021, because USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.”

February 2, 2021. The Biden Administration has issued three Executive Orders pertaining to immigration, however, none of these orders address the current ban on H-1B and L-1 visa applicants valid until March 31, 2021. This was a disappointment to many immigration advocates, along with his failure to address the newly created health insurance requirement, as well as the Public Charge rule, both of which remain in effect. 

NEWS HIGHLIGHTS FOR 2020

December 28, 2020. The U.S. Citizenship and Immigration Service (USCIS) final fee rule, which sought to significantly increase the filing fees associated with immigration benefits, will remain enjoined in its entirety. This is a result of the government’s filing of an unopposed motion for voluntary dismissal of its appeal in ILRC v. Wolf, a lawsuit filed on behalf of leading immigrant’s rights organizations challenging the final fee rule.

November 13, 2020. The U.S. Citizenship and Immigration Service (USCIS) has updated its Policy Manual to reflect changes to the Civics Test for purposes of Naturalizing (obtaining U.S. Citizenship). Specifically, the policy increases test questions to a pool of 128 questions, with the number of exam questions being 20, and the total number of correct answers needed to pass to 12. The new policy applies to Naturalization applications filed on or after December 1, 2020.

October 16, 2020. U.S. Citizenship and Immigration Services (USCIS) announced today that it will increase the filing fee amount for premium processing (15 day processing), effective October 19, 2020 from $1,440 to a whopping $2,500, for all existing filings eligible for premium processing (except those requesting H-2B or R-1, which will increase to $1,500).
Notably, Public Law No. 116-159 also provides the USCIS with the ability to expand premium processing to additional forms and benefit requests, however, USCIS has not yet taken action to expand the premium processing program to other types of benefits.

October 1, 2020. President Trump has signed a temporary spending measure that will fund the U.S. government, which includes immigration operations, through December 11, 2020. Among other things, the spending measure extends several immigration programs that were set to expire, for example, the e-Verify Program and EB-5 Regional Center Program.
Notably, the spending measure includes a permanent expansion of the U.S. Citizenship and Immigration Services (USCIS) Premium Processing program that increases the government filing fee from $1,440.00 to $2,500.00 for certain types of applications, while providing the Department of Homeland Security (DHS) discretion to designate other types of applications and benefits for premium processing. Under the new rule, H-4 dependent applications, as well as EAD applications will become eligible for premium processing, along with I-140 Immigrant Petitions in the EB-1 category.
Although the new premium processing rule took effect immediately, it will likely take the USCIS several weeks to implement the new rule. We expect the USCIS to issue a public announcement once the new expanded premium processing program becomes available. In the meantime, only the existing premium program for certain I-129 and I-140 petitions remains available.

August 12, 2020. The American Immigration Lawyers Association (AILA) has received reports that the USCIS may select more H-1B registrations for the fiscal year 2021. If so, a new H-1B filing period may open as early as August 17 through  mid-November 2020. We will continue to closely monitor this development.

June 24, 2020. Since Canadian citizens are generally exempt from the visa requirement, they should be considered exempt from the June 22, 2020 Presidential Proclamation, as they are not "seeking entry pursuant" to an H, J, or L visa. The American Immigration Lawyers Association (AILA) issued a practice alert on June 24, 2020, confirming that its CBP-OFO Liaison Committee verified this interpretation with the U.S. Customs and Border Protection (CBP). Guidance has been provided to local CBP ports on this issue.

June 22, 2020. In response to the economic impact of the COVID-19 pandemic, President Trump issued a Presidential Proclamation which temporarily suspends the entry of any individual seeking entry into the U.S. pursuant to any of the following nonimmigrant (temporary) visa categories:
  • H-1B Specialty Occupation and H-2B workers;
  • L-1A Executives and Managers, and L-1B Specialized Knowledge workers;
  • J-1 Interns/Trainees, Teachers, Camp Counselors, au pairs and Summer Work Travel participants; and
  • Their dependent spouses and children. 
  • It is unclear whether the ban bars entry of visa exempt Canadian nationals seeking admission in these categories.
The proclamation shall apply only to those who:
  • Are outside the United States on the effective date of this proclamation;
  • Do not have a valid nonimmigrant visa that is valid on the effective date of this proclamation, or does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation.
The following categories are not subject to the ban:
  • U.S. lawful permanent residents;
  • The spouse or child of a U.S. citizen;
  • J-1  exchange program participants other than interns, trainees, teachers, camp counselors, au pairs and summer work travel participants; and
  • Foreign nationals entering to provide temporary labor or services essential to the U.S. food supply chain.
The proclamation also requires the U.S. Department of Homeland Security to promulgate regulations that could provide additional challenges to foreign nationals seeking sponsorship for H-1B nonimmigrant visas, or for individuals seeking employer-sponsored Permanent Residency (“green cards”) in the employment-based 2nd and 3rd preference categories, applicable to advanced degree professionals and professional workers.
The nonimmigrant ban will take effect at 12:01am EDT on June 24 and will remain in place until December 31, 2020. The ban may be extended or broadened.

June 19, 2020. The American Immigration Lawyers Association (AILA) has received reports that a general agreement was reached on June 16th  regarding a proposed update to Presidential Proclamation 10014, and that this agreement could be finalized by the end of this week, Friday June 19, 2020. AILA believes that any extension or expansion of the Proclamation must happen before it expires at 11:59 pm on June 22, 2020 and that reports seem to confirm that nonimmigrant visa categories (H-1B, H-2B, L-1, and J-1) will be impacted.

June 9, 2020. Rumor or real? The American Immigration Lawyers Association (AILA) has been closely monitoring Presidential Proclamation 10014, since its April 22, 2020 announcement, and what this will mean for the H-1B program, as well as other work visa categories.
According to AILA, here is what we know in terms of timing: The proclamation could be issued as early as mid-June and the proclamation could potentially be in effect for as long as 90 to 180 days. In terms of substance, AILA notes, that the Proclamation could bar entry to the U.S. for H-1B, H-2B, L-1 and J-1 for a temporary period, with a possible exemption for L-1A multinational executives and managers. The proclamation will provide a temporary ban on the entry of nonimmigrant workers, accordingly will not affect those already in the U.S. Exceptions will be carved out for COVID-19 related exemptions, such as for health care workers and food supply related exemptions.
Other areas of potential rulemaking surround the F-1 OPT (student) and H-4 (spousal work authorization) categories, which could take place as early as July, according to AILA. It is also unclear whether the formal rule making processes of public notice and public comment will be adhered to. If implemented, such rulemaking could rescind the 24 month STEM OPT regulation and add additional requirements to the 12 month post-completion Optional Practical Training (OPT) program; as well as rescind the H-4 EAD for spouses of H-1B holders.

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​Prior updates have been archived.