WEEKLY IMMIGRATION UPDATE – April 12, 2021
1. F-1 Students Seeking Optional Practical Training Can Now File Form I-765 Online – On April 12, 2021 USCIS announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing for (c)(3)(A) – Pre-Completion OPT; (c)(3)(B) – Post-Completion OPT; (c)(3)(C) – 24-Month Extension of STEM OPT
2. CBP Reminds Carriers of LPR Boarding Policy – U.S. Customs and Border Protection issued guidance on March 5, 2021, for its Carrier Liaison Program on the current policy for boarding of lawful permanent residents (LPRs).
3. State Dept. Updates Visa Services Guidance, Policy on National Interest Exceptions for Regional COVID Proclamations – The Department of State recently released several updates.
4. Attorneys, AILA Sue State Dept. for Unlawfully Refusing to Issue Visas Due to Certain Travel Bans – Attorneys Jeff Joseph of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, along with the American Immigration Lawyers Association, filed a complaint on behalf of scores of plaintiffs against the Department of State and Secretary Antony Blinken, alleging that the agency has unlawfully relied on certain travel bans in refusing to issue visas.
5. OFLC Announces New Application for Prevailing Wage Determination – The Department of Labor’s Office of Foreign Labor Certification revised its Form ETA-9141, Application for Prevailing Wage Determination, for use beginning May 3, 2021.
6. Border Czar to Leave Biden Administration; Vice President to Lead Efforts with Mexico and Northern Triangle Countries– Roberta Jacobson, whom President Biden appointed as Special Assistant to the President and Coordinator for the Southwest Border, plans to leave the position at the end of April, as the number of migrants attempting to cross the border is surging.
1. F-1 Students Seeking Optional Practical Training Can Now File Form I-765 Online
On April 12, 2021 U.S. Citizenship and Immigration Services today announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:
- (c)(3)(A) – Pre-Completion OPT;
- (c)(3)(B) – Post-Completion OPT; and
- (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.
OPT is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.
“USCIS remains committed to maximizing our online filing capabilities,” said Senior Official Performing the Duties of USCIS Director Tracy Renaud. “The I-765 online filing option allows eligible students to file forms online in a more user-friendly fashion and increases efficiencies for adjudicators.”
The option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT. If an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.
Online filing allows applicants to submit forms electronically, check the status of their case anytime from anywhere, and receive notices from USCIS online instead of waiting for them in the mail. USCIS is using innovation and technology to meet the needs of applicants, petitioners and employees. Regardless of the paper or electronic format of an application or petition, USCIS is committed to ensuring a secure and efficient process for all.
Individuals can file 11 USCIS forms online, which can all be found on the Forms Available to File Online page. To file these forms online, individuals must first create a USCIS online account at myaccount.uscis.gov. This free account allows them to:
- Submit their forms;
- Pay their fees;
- Track the status of their case;
- Communicate with USCIS through a secure inbox; and
- Respond to Requests for Evidence.
USCIS continues to accept the latest paper version of these forms by mail
2. CBP Reminds Carriers of LPR Boarding Policy
U.S. Customs and Border Protection issued guidance on March 5, 2021, for its Carrier Liaison Program on the current policy for boarding of lawful permanent residents (LPRs):
Unexpired Valid Permanent Resident Card
- Passengers with a valid, unexpired Permanent Resident Card (PRC or “green card”) may be boarded without any additional documentation.
Re-Entry Permit (I-327): Valid and Unexpired
- Passengers with valid, unexpired re-entry permit are permitted to board without additional documentation.
- The document must be the original re-entry permit. Copies are not accepted.
Expired Permanent Resident Cards: Ten-year validity
- Lawful permanent residents (LPRs) with an expired I-551 may be boarded without penalty, provided the card was issued with a 10-year expiration date.
Expired Permanent Resident Cards: Containing Extension Sticker/Form I-797
- Starting in January 2021, the sticker that is currently issued to LPRs to extend the validity of their PRC (placed on the back of the card) has been discontinued.
- The revised I-797 receipt notice, together with an applicant’s PRC, will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the front of the green card.
- PRCs that contain the extension sticker will remain valid until the expiration date.
- The document must be the original I-797 permit. Copies are not accepted.
Expired Conditional Resident: Two-year validity
- A Conditional Resident with an expired PRC (with a two-year expiration date) may be boarded if also in possession of a Notice of Action (Form I-797).
- The Notice of Action extends the validity of the card for a specified length of time, generally 18 months.
- Do not board the traveler if they are not in possession of Form I-797.
SB-1 Visas: Valid and Unexpired
- Travelers in possession of a valid, unexpired SB-1 visa in their passport may be boarded without additional documentation.
The guidance notes that “[a]irlines should not be determining admissibility of a [traveler] outside the parameters of the document requirements.
3. State Dept. Updates Visa Services Guidance, Policy on National Interest Exceptions for Regional COVID Proclamations
The Department of State recently released several updates on visa services and national interest exception policy for regional COVID proclamations:
Visa Services Guidance
Referring to continued restrictions due to the COVID-19 pandemic worldwide, the Department announced on April 6, 2021, that U.S. embassies and consulates that process nonimmigrant visa applications “are prioritizing travelers with urgent needs, foreign diplomats, mission-critical categories of travelers (such as those coming to assist with the U.S. response to the COVID-19 pandemic, and workers who are essential to the American food supply), followed by students, exchange visitors, and some temporary employment visas.”
With respect to visa services, for consular sections that have the capacity, “the processing of immigrant and [fiancé(e)] visas, particularly for immediate relatives and other family-sponsored applicants, is our highest priority. U.S. Embassies and Consulates are also prioritizing the processing of immigrant visa cases previously refused under the rescinded Presidential Proclamations 9645 and 9983,” the Department said.
The Department noted that as a result of the pandemic, appointment capacity continues to be reduced, which “has created a significant backlog of both immigrant and nonimmigrant visa applicants awaiting a visa interview.” The Department said it is working to reduce the backlog.
National Interest Exceptions
The Department announced on April 8, 2021, that the travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of approving exceptions under the “geographic” COVID Presidential Proclamations (9984, 9992, and 10143).
The Department noted that these proclamations “restrict the entry of individuals physically present, within the 14-day period prior to their attempted entry into the United States, in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Federative Republic of Brazil, or Republic of South Africa.”
- “Visa Services Operating Status Update,” Dept. of State, Apr. 6, 2021, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html
- “Updates to National Interest Exceptions for Regional COVID Proclamations,” Dept. of State, Apr. 8, 2021, https://travel.state.gov/content/travel/en/News/visas-news/updates-to-national-interest-exceptions-for-regional-covid-proclamations.html
4. Attorneys, AILA Sue State Dept. for Unlawfully Refusing to Issue Visas Due to Certain Travel Bans
Attorneys Jeff Joseph of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, along with the American Immigration Lawyers Association (AILA), filed a complaint on April 7, 2021, on behalf of scores of plaintiffs against the Department of State and Secretary Antony Blinken, alleging that the agency has unlawfully relied on certain travel bans in refusing to issue visas.
Specifically, the travel bans relate to suspensions of entry that apply to individuals who were physically present in Iran, China, Brazil, South Africa, the Republic of Ireland, the United Kingdom, and the Schengen area of Europe during the 14 days before seeking entry. The complaint states that these regional bans based on presence allow for entry after the individual has remained outside a designated country for 14 days, but that the defendants have refused to issue visas that would allow the plaintiffs to quarantine in a third country for 14 days before seeking entry.
- Complaint, April 7, 2021, https://www.aila.org/infonet/complaint-unlawful-suspension-of-visa-processing
- Press statement, AILA, April 8, 2021, https://www.aila.org/advo-media/press-releases/2021/litigation-team-sues-biden-administrations-state
5. OFLC Announces New Application for Prevailing Wage Determination
The Department of Labor’s Office of Foreign Labor Certification (OFLC) revised its Form ETA-9141, Application for Prevailing Wage Determination, for use beginning May 3, 2021.
As of 8 a.m. on May 3, 2021, OFLC will only accept prevailing wage applications submitted using the new form. OFLC will reject, without further review, prevailing wage paper applications submitted using the current version of the form. A stakeholder webinar will be held on April 27, 2021, at 2 p.m. ET (2 hours).
- OFLC announcement, https://www.dol.gov/agencies/eta/foreign-labor (scroll down to announcement on April 2, 2021)
- Webinar meeting link, https://usdol.webex.com/usdol/j.php?MTID=mdecd014fcb2a1d00e8ae503dca9890d4 (for more information, including alternative ways to join the webinar, see https://www.dol.gov/agencies/eta/foreign-labor (scroll down to webinar information on April 2, 2021)
6. Border Czar to Leave Biden Administration; Vice President to Lead Efforts with Mexico and Northern Triangle Countries
Roberta Jacobson, whom President Biden appointed as Special Assistant to the President and Coordinator for the Southwest Border, plans to leave the position at the end of April, as the number of migrants attempting to cross the border is surging. She had committed to serve for the first 100 days of the Biden administration, according to an April 9, 2021, statement from Jake Sullivan, National Security Advisor.
Ms. Jacobson, formerly U.S. Ambassador to Mexico, “launched our renewed efforts with the Northern Triangle nations of El Salvador, Guatemala, and Honduras,” and “underscored this Administration’s commitment to reenergizing the U.S. immigration system.” Ms. Jacobson had said the Biden administration “plans to approach U.S. companies about increasing investment in Mexico and Central America to try to reduce migration.”
President Biden appointed Vice President Kamala Harris to lead “efforts with Mexico and the Northern Triangle,” Mr. Sullivan said. He added that Vice President Harris will oversee “a whole-of-government approach supported by outstanding public servants across the interagency including Secretary of Homeland Security Alejandro Mayorkas and Secretary of Health and Human Services Xavier Becerra, who were tasked by the President at the beginning of the administration to rebuild our immigration system.” Vice President Harris is expected to use diplomacy in her efforts rather than being responsible for the border, according to reports.
- Statement from National Security Advisor Jake Sullivan on the Service of Ambassador Jacobson, Coordinator for the Southwest Border, Apr. 9, 2021, https://bit.ly/320r7BA
- “Roberta Jacobson, Senior Biden Official Overseeing Border, Stepping Down at End of Month,” ABC News, Apr. 9, 2021, https://abcnews.go.com/Politics/roberta-jacobson-senior-biden-official-overseeing-border-stepping/story?id=76984133
- “White House Urges Private Investment to Stem Migrant Surge,” Bloomberg, Apr. 9, 2021, https://www.bloomberg.com/news/articles/2021-04-09/white-house-urges-private-investment-to-help-stem-migrant-surge?sref=jxky9jIk
- “Young Migrants Crowd Shelters, Posing Test for Biden,” New York Times, Apr. 10, 2021, https://www.nytimes.com/2021/04/10/us/politics/biden-immigration.html
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/
Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
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.