WEEKLY IMMIGRATION UPDATE 4.08.2021
WEEKLY IMMIGRATION UPDATE – April 8, 2021
1. USCIS Completes Initial FY 2022 H-1B Cap Season Selections; Petitions May Be Filed Through June 30, 2021 – USCIS notified all prospective petitioners with selected registrations that they are eligible to file H-1B cap-subject petitions for the named beneficiaries. The petition filing window is April 1, 2021 through June 30, 2021.
2. DHS Extends I-9 Requirement Flexibility Until May 31, 2021 – DHS announced an extension until May 31, 2021, of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing COVID-19 pandemic precautions.
3. ICE Announces New SEVIS Process for Cap-Gap Extensions – The Student and Exchange Visitor Program updated the Student and Exchange Visitor Information System (SEVIS) to remove the cap-gap extension link. SEVIS will automatically add the cap-gap extension to the record of an eligible F-1 student who is a beneficiary of a pending cap-subject H-1B petition.
4. Bipartisan Bill Introduced in Senate Would Provide Up to 40,000 Unused Immigrant Visas for Doctors, Nurses – The Healthcare Workforce Resilience Act would provide unused employment-based immigrant visas for up to 25,000 foreign nurses and 15,000 foreign physicians and their family members.
5. Maryland Governor Asks for Elimination of Lottery System and More H-2B Visas to Help Seafood Industry, Others – Gov. Hogan said that H-2B workers are “essential” and “vital to Maryland’s seafood industry and market, which has grown to include regional, national, and international reach.”
6. Labor Dept. Asks for Info on Data Sources/Methods for Prevailing Wage Determinations – The Department of Labor invited interested parties to provide information on the sources of data and methodologies for determining prevailing wage levels covering employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H–1B, H–1B1, and E–3 nonimmigrant visas.
7. Labor Dept. Solicits Comments on O*NET Data Collection Authority – The database “provides the most comprehensive standardized source of occupational and skills information in the nation,” the Department said.
8. “Blank Space” Criteria Eliminated for Rejection of Forms – USCIS has eliminated “blank space” form rejection criteria introduced in 2019 and reverted to the criteria it applied before October 2019.
9. EOIR Implements Revised Case Flow Processing Model for Certain Non-Detained Cases – The Executive Office for Immigration Review issued a revised case flow processing model and canceled a policy memorandum issued in November 2020 that implemented a new model generally applying to removal cases involving non-detained respondents with representation.
1. USCIS Completes Initial FY 2022 H-1B Cap Season Selections; Petitions May Be Filed Through June 30, 2021
U.S. Citizenship and Immigration Services (USCIS) announced on March 30, 2021, that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap).
The agency notified all prospective petitioners with selected registrations that they are eligible to file H-1B cap-subject petitions for the named beneficiaries. The filing window for petitions will be open through June 30, 2021. USCIS said that when completing the Form I-129, Petition for a Nonimmigrant Worker:
[P]lease ensure that the below question is included as Question 5 in Supplement H on page 13. If you have already filled out Form I-129 and this question was not included, you may replace Supplement H in your petition by printing out and completing pages 13 and 14 from the current version of Form I-129 on uscis.gov and including them with your petition. Starting July 1, 2021, we will only accept the 03/10/21 edition of Form I-129. Until then, you can also use the 09/30/20 and 01/27/20 editions.
The question to be included states, “If you selected a. or d. in Item Number 4., and are filing an H-1B cap petition (including a petition under the U.S. advanced degree exemption), provide the Beneficiary Confirmation Number from the H-1B Registration Selection Notice for the beneficiary named in this petition (if applicable).”
- FY 2022 H-1B Cap Season Updates, USCIS, Mar. 30, 2021, https://www.uscis.gov/news/alerts/fy-2022-h-1b-cap-season-updates
- H-1B Electronic Registration Process, USCIS, Mar. 4, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
- H-1B Cap Season, USCIS, Mar. 31, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season
2. DHS Extends I-9 Requirement Flexibility Until May 31, 2021
The Department of Homeland Security (DHS) announced an extension until May 31, 2021, of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing COVID-19 pandemic precautions. The temporary guidance had been set to expire March 31.
The flexibility applies only to employers and workplaces that are operating remotely.
- DHS announcement, Mar. 31, 2021, https://www.uscis.gov/i-9-central/form-i-9-related-news/dhs-extends-form-i-9-requirement-flexibility-effective-mar-31-2021
3. ICE Announces New SEVIS Process for Cap-Gap Extensions
On March 26, 2021, the Student and Exchange Visitor Program (SEVP) updated the Student and Exchange Visitor Information System (SEVIS) to remove the cap-gap extension link. This link allowed designated school officials (DSOs) to temporarily apply cap-gap relief to the record of an eligible F-1 student who is the beneficiary of a filed H-1B petition but is awaiting confirmation from U.S. Citizenship and Immigration Services (USCIS) that their petition was selected for processing. USCIS implementation of the H-1B Electronic Registration Process in 2020 eliminated this need, U.S. Immigration and Customs Enforcement (ICE) said.
SEVIS will automatically add the cap-gap extension to the record of an eligible F-1 student who is a beneficiary of a pending cap-subject H-1B petition, ICE said. If the cap-gap extension notation is missing from an eligible student’s record or other changes are needed, DSOs must contact the SEVP Response Center (SRC) at 703-603-3400 or 800-892-4829 (email: SEVP@ice.dhs.gov) and request a data fix.
- “New SEVIS Process for Cap-Gap Extensions,” SEVP Broadcast Message, Mar. 29, 2021, https://www.ice.gov/doclib/sevis/pdf/bcm2103-02.pdf
4. Bipartisan Bill Introduced in Senate Would Provide Up to 40,000 Unused Immigrant Visas for Doctors, Nurses
New legislation introduced on March 29, 2021, by Democratic and Republican senators would provide unused employment-based immigrant visas for up to 25,000 foreign nurses and 15,000 foreign physicians and their family members. The Healthcare Workforce Resilience Act (S. 1024) is intended to beef up the U.S. response to the COVID-19 pandemic. Below are highlights:
- The visas would be made available from a pool of recaptured visas that were unused in fiscal years 1992 through 2020, and would not be counted against the total number of immigrant visas reserved for professional nurses and physicians.
- The visas would be exempt from per-country numerical limits and would be issued in order of the priority date assigned at the time the visa petition was filed.
- The petitioner would need to attest that the hiring would not displace a U.S. worker.
- Processing would be expedited.
- The filing period would be limited to 90 days following the termination of President Biden’s COVID-19 pandemic emergency declaration.
The bill is supported by several dozen organizations, including the American Academy of Family Physicians, the American Academy of Pediatrics, the American Hospital Association, the American Medical Association, the National Rural Health Association, and others.
- “Young, Durbin, Senators Introduce Bipartisan Bill Addressing Shortage of Doctors, Nurses,” Press Release, Sen. Todd Young (R-Ind.), Mar. 29, 2021, https://www.young.senate.gov/newsroom/press-releases/young-durbin-senators-introduce-bipartisan-bill-addressing-shortage-of-doctors-nurses
- Bill text, https://www.congress.gov/bill/117th-congress/senate-bill/1024?q=%7B%22search%22%3A%5B%22S.+1024%22%5D%7D&s=3&r=1
5. Maryland Governor Asks for Elimination of Lottery System and More H-2B Visas to Help Seafood Industry, Others
On March 23, 2021, Maryland Governor Larry Hogan sent a letter to Alejandro Mayorkas, Secretary of Homeland Security, and Marty Walsh, Secretary of Labor, asking for elimination of the H-2B nonimmigrant visa lottery system and an increase in the number of H-2B visas, now capped annually at 66,000, “to the maximum allowable under federal law and under the legislative language included in the omnibus bill.” Of particular concern is Maryland’s blue crab harvest season, which started on April 1.
Gov. Hogan said the request was in support of “Maryland’s seafood industry and other seasonal employers.” He said that H-2B workers are “essential” and “vital to Maryland’s seafood industry and market, which has grown to include regional, national, and international reach.” He noted that Maryland “has fought” to support the seafood industry during the COVID-19 pandemic and to “find creative ways to protect our markets and workers.” A loss of H-2B workers would “negate that work, disrupt an already abnormal supply chain, jeopardize the state’s $355 million seafood industry, and threaten thousands of direct and indirect jobs,” he warned, citing research by the University of Maryland indicating that every H-2B temporary worker in crab processing, for example, “helps create an average 2.5 jobs for American citizens.” He said that without the temporary workers and an end to the “arbitrary lottery system,” iconic family and small businesses could be forced to close.
- Letter from Gov. Larry Hogan of Maryland, Mar. 23, 2021, https://governor.maryland.gov/wp-content/uploads/2021/03/H2B-Letter_3.21.21.pdf
6. Labor Dept. Asks for Info on Data Sources/Methods for Prevailing Wage Determinations
On April 2, 2021, the Department of Labor invited interested parties to provide information on the sources of data and methodologies for determining prevailing wage levels covering employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H–1B, H–1B1, and E–3 nonimmigrant visas.
The information received in response to this request for information “will inform and be considered by the Department as it reviews the final rule,” Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, published on January 14, 2021. The Department said that its review “may result in the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels in a manner that more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed.”
- Request for Information, Dept. of Labor, Apr. 2, 2021, https://www.govinfo.gov/content/pkg/FR-2021-04-02/pdf/2021-06889.pdf
7. Labor Dept. Solicits Comments on O*NET Data Collection Authority
The Department of Labor’s Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “O*NET Data Collection Program.”
The O*NET Data Collection Program is “an ongoing effort to collect and maintain current information on the detailed characteristics of occupations and skills for more than 900 occupations,” the notice explains. The resulting database “provides the most comprehensive standardized source of occupational and skills information in the nation.” The Department noted that O*NET information is “used by a wide range of audiences, including individuals making career decisions, public agencies and schools providing career exploration services or education and training programs, and businesses making staffing and training decisions. The O*NET system provides a common language, framework and database to meet the administrative needs of various federal programs, including workforce investment and training programs.”
Comments are due by May 28, 2021.
- Dept. of Labor notice, Mar. 29, 2021, https://www.govinfo.gov/content/pkg/FR-2021-03-29/pdf/2021-06387.pdf
8. “Blank Space” Criteria Eliminated for Rejection of Forms
U.S. Citizenship and Immigration Services (USCIS) has eliminated “blank space” form rejection criteria introduced in 2019 and reverted to the criteria it applied before October 2019.
USCIS will no longer reject the following forms based solely on whether an applicant leaves a blank space anywhere on the form: Form I-589, Application for Asylum and for Withholding of Removal; Form I-612, Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended); and Form I-918, Petition for U Nonimmigrant Status.
However, USCIS said it may reject these forms, or delays might be created, if an applicant leaves required spaces blank, fails to respond to questions related to filing requirements, or omits any required initial evidence.
- USCIS announcement, April 1, 2021, https://www.uscis.gov/news/alerts/uscis-confirms-elimination-of-blank-space-criteria
9. EOIR Implements Revised Case Flow Processing Model for Certain Non-Detained Cases
In a memorandum issued on April 2, 2021, the Department of Justice’s Executive Office for Immigration Review (EOIR) issued a revised case flow processing model and canceled a policy memorandum issued in November 2020 (PM 21-05) that implemented a new model generally applying to removal cases involving non-detained respondents with representation.
In general, under the new model, for non-detained cases in which a representative files a Form EOIR-28 at least 15 days before a master calendar hearing, “the hearing will be vacated and the court will send to the parties a scheduling order, setting deadlines for the filing of written pleadings and any evidence related to the charges of removability. The deadline will be 30 days after the most recently scheduled hearing date, whether vacated or held, unless pleadings have already been taken or a deadline is otherwise specified by the immigration judge. Where necessary, parties may request a master calendar hearing or seek extensions of filing deadlines by written motion,” EOIR said.
- “Revised Case Flow Processing Before the Immigration Courts,” EOIR (PM 21-18), Apr. 2, 2021, https://www.justice.gov/eoir/book/file/1382736/download
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.