WEEKLY IMMIGRATION UPDATE – February 8, 2021
1. USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions – The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B cap filing season this March.
2. FY 2022 H-1B Visa Registration Period Starts March 9 – The initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021.
3. DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May – The proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”
4. USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions – USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.
5. Alejandro Mayorkas Confirmed To Lead Department of Homeland Security – Mr. Mayorkas has become the first immigrant and first Latino to serve as Secretary of Homeland Security.
6. Biden Signs Immigration-Related Executive Orders – President Biden recently signed several immigration-related executive orders.
Please scroll down for additional details
1. USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of a final rule that changed the selection process for cap-subject H-1B petitions. The rule would essentially eliminate the lottery process to give priority to higher wage offerings. The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B filing season this March.
For the upcoming H-1B cap lottery, USCIS will use the current regulations and selection process (random selection) to select registrations submitted during the filing window of March 9 to March 25, 2021. The H-1B lottery process saw significant changes last year, with the implementation of a pre-registration process.
- “DHS Delays Effective Date of H-1B Selection Final Rule,” Feb. 4, 2021, https://www.uscis.gov/news/alerts/dhs-delays-effective-date-of-h-1b-selection-final-rule
- “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date,” USCIS, Feb. 8, 2021, Federal Register, https://www.federalregister.gov/documents/2021/02/08/2021-02665/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions
- “USCIS Modifies H-1B Selection Process to Prioritize Wages,” USCIS, Jan. 7, 2021, https://www.uscis.gov/news/news-releases/uscis-modifies-h-1b-selection-process-to-prioritize-wages
2. FY 2022 H-1B Visa Registration Period Starts Tuesday, March 9
U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021. Representatives and registrants must wait until March 9 to create and submit H-1B registrations.
USCIS explained that prospective petitioners (registrants) must use a “registrant” account within myUSCIS.gov to submit their registrations. Registrants will not be able to add more information after they select “I am an H-1B registrant” account type until the initial registration period opens. Petitioners submitting their own registrations will enter their company information as part of their first H-1B registration. Petitioners working with a representative will review company information that the representative enters before submitting the registration for each prospective beneficiary.
Representatives can create an account at any time by using the same kind of account already available to representatives. Representatives who already have a representative account may use that account; they do not need to create a new account, USCIS said.
USCIS has released instructions and a video on how to set up an account and register (link below).
- “H-1B Electronic Registration Process,” USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (scroll down to “Step-by-Step Instructions” for video)
- “H-1B Visa Registration for 2022 to Begin on Mar. 9, Lottery Results to be Notified by Mar. 31,” Economic Times, https://bit.ly/3rqxuJ2
3. DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May
The Department of Labor’s Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”
Comments may be submitted until February 16, 2021.
- “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States: Proposed Delay of Effective Date,” Federal Register, Feb. 1, 2021, https://bit.ly/3aKAkSB
4. USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions
On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.
USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said.
- “Rescission of 2017 Policy Memorandum PM-602-0142,” USCIS, Feb. 3, 2021, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf
5. Alejandro Mayorkas Confirmed To Lead Department of Homeland Security
The U.S. Senate confirmed Alejandro Mayorkas as Secretary of Homeland Security on February 2, 2021, making Mr. Mayorkas the first immigrant and first Latino to serve in that role.
Mr. Mayorkas comes from a 30-year career as a law enforcement official and a nationally recognized lawyer in the private sector. He served as Deputy Secretary of the Department of Homeland Security (DHS) from 2013 to 2016, and as Director of U.S. Citizenship and Immigration Services from 2009 to 2013. During his tenure at DHS, he led the development and implementation of Deferred Action for Childhood Arrivals, negotiated cybersecurity and homeland security agreements with foreign governments, led the agency’s response to Ebola and Zika, helped build and administer the Blue Campaign to combat human trafficking, and developed an emergency relief program for orphaned youth following the January 2010 earthquake in Haiti. He also created the Fraud Detection and National Security Directorate.
Mr. Mayorkas began his government service in the Department of Justice, where he served as Assistant United States Attorney in the Central District of California, specializing in the prosecution of white-collar crime. After nearly nine years as a federal prosecutor, he became a U.S. Attorney.
Mr. Mayorkas received a bachelor’s degree with distinction from the University of California at Berkeley and a law degree from Loyola Law School.
- “Alejandro Mayorkas,” DHS announcement, Feb. 4, 2021, https://www.dhs.gov/person/alejandro-mayorkas
- Senate Vote Summary-Mayorkas Confirmation, Roll Call Vote 117th Congress, 1st Session, Feb. 2, 2021, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=117&session=1&vote=00012
6. Biden Signs Immigration-Related Executive Orders
President Biden recently signed several immigration-related executive orders to:
- Develop a strategy to address irregular migration across the southern border and create a humane asylum system. The Biden administration said it will address the underlying causes of migration; collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up asylum seekers’ and migrants’ protection and opportunities closer to home; and ensure that Central American refugees and asylum seekers have access to legal avenues to the United States. The order also directs the Secretary of Homeland Security to review the Migrant Protection Protocols program, and directs a series of actions to restore the U.S. asylum system, “including by rescinding and directing agency review of a host of Trump Administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers.”
- Restore the U.S. refugee admissions program. This order launches administrative reform efforts with a goal of increasing refugee admissions to 125,000 in the first full fiscal year of the Biden administration, and proposing a raise in refugee admissions for this fiscal year after consulting with Congress. Among other things, the order will expand refugee adjudication capacity and review the current Special Immigrant Visa program for Iraqis and Syrians.
- Elevate the role of the White House in coordinating the federal government’s strategy to promote immigrant integration and inclusion. This order includes re-establishing a Task Force on New Americans, and “ensuring that our legal immigration system operates fairly and efficiently.” The order requires agencies to review “recent regulations, policies, and guidance that have set up barriers to our legal immigration system” and “rescinds President Trump’s memorandum requiring family sponsors to repay the government if relatives receive public benefits, instructs the agencies to review the public charge rule and related policies, and begins a review to streamline the naturalization process.”
- Create a task force to reunify families. This task force will work across the U.S. government, with “key stakeholders and representatives of impacted families,” and with “partners across the hemisphere to find parents and children separated by the Trump Administration.” The task force will make recommendations on next steps for reunification, and “to prevent such tragedies from occurring again,” and will report regularly to the President.
o “Fact Sheet: President Biden Outlines Steps to Reform Our Immigration System by Keeping Families Together, Addressing the Root Causes of Irregular Migration, and Streamlining the Legal Immigration System,” White House, Feb. 2, 2021, https://bit.ly/39VLHrC
o “Fact Sheet: President Biden to Sign Executive Actions Restoring America’s Place in the World,” White House, Feb. 4, 2021, https://bit.ly/36OfyQP
o “Biden Signs Immigration Executive Orders and Establishes Task Force to Reunite Separated Families,” CNN, Feb. 2, 2021, https://www.cnn.com/2021/02/02/politics/biden-immigration-executive-orders/index.html
PUBLICATIONS OF INTEREST
- H-1B denial rates for FY 2020 and impact of court decisions. The National Foundation for American Policy has released a policy brief, “H-1B Denial Rates for FY 2020 and the Impact of Court Decisions.” Among other things, the policy brief states that the Trump administration “managed to carry out what judges determined to be unlawful policies for nearly four years. Those policies resulted in high denial rates for H-1B petitions for initial employment of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015. The FY 2020 denial rate would have been much higher without the recent court rulings.” https://nfap.com/wp-content/uploads/2021/01/H-1B-Denial-Rates-For-FY-2020-and-the-Impact-of-Court-Decisions.NFAP-Policy-Brief.January-2021-2.pdf
- Brookings Institution on ways the Biden administration can improve the employment-based immigration system without Congress. In a broad review of immigration policy proposals, a new report from the Brookings Institution identifies four areas for improvement for the Biden administration: removing impediments to immigration, improving the predictability of the immigration system, resuming the use of discretion by immigration officers, and expanding customer service. The new report and proposal guide offer a map to immigration policy proposals from numerous organizations. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars.
E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information
American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
Study in the States: @StudyinStates
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.