WEEKLY IMMIGRATION UPDATE – May 21, 2021
1. DHS Announces Continuation of International Entrepreneur Program — USCIS said the program, first introduced in 2017, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.”
2. June Visa Bulletin Published – DOS announces immigrant visa priority dates effective June 1, 2021. EB-2 and EB-3 India and China advance. USCIS announces Final Action Date Chart must be utilized for employment-based categories. Family-based 2A may use the Final Action Chart; all other family-based categories must use the Dates for Filing Chart. The next “Chat with Charlie” will take place on Monday May 24, 2021 at 1:00 p.m. EST to discuss the June Visa Bulletin.
3. DOL Further Delays Effective Date of Prevailing Wage Computation Final Rule – The Department of Labor has delayed a final rule on prevailing wage computations until November 14, 2022.
4. CBP Announces Policy Change on National Interest Exceptions at Port of Atlanta – Due to a “recent necessary policy change,” U.S. Customs and Border Protection (CBP) at the Port of Atlanta will only consider processing § 212(f) national interest exception waiver requests for “urgent humanitarian reasons or those involving national security and/or law enforcement matters.”
5. Afghan Translators/Interpreters Who Helped United States Seek Visas Promised to Them – An estimated 18,000 Afghan translators/interpreters and their families who have aided the U.S. military and government with translation services await pending Special Immigrant Visas. With the September 2021 deadline looming for the United States to withdraw American troops, pleas for visas to be issued quickly have been renewed.
6. USCIS Provides Guidance on Exemption to Temporary Need Requirement for Certain H-2B Workers in Guam and Marianas – USCIS issued guidance effective immediately regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions for certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands.
1. DHS Announces Continuation of International Entrepreneur Program
U.S. Citizenship and Immigration Services (USCIS) announced on May 10, 2021, that the Department of Homeland Security (DHS) is withdrawing a 2018 proposed rule that would have removed the International Entrepreneur parole program from DHS regulations. USCIS said the program, first introduced in 2017, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.”
Under the program, parole may be granted for up to three entrepreneurs per start-up entity, as well as their spouses and children. Entrepreneurs granted parole are eligible to work only for their start-up business. Their spouses may apply for employment authorization in the United States, but their children are not eligible for such authorization based on the program. An applicant must file Form I-941, Application for Entrepreneur Parole, with the required fees (including biometric) and supporting documentary evidence. The fees are $1,200 for filing the I-941 and $85 for biometrics. Additional forms and fees are required for spouses and children.
- USCIS/DHS announcement, May 10, 2021, https://www.uscis.gov/news/news-releases/dhs-announces-continuation-of-international-entrepreneur-parole-program
- USCIS International Entrepreneur Parole page, which includes details on eligibility requirements, filing procedures, and links to forms, is at https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole
2. June Visa Bulletin Published
The Department of State published the charts for immigrant visa priority dates effective June 1, 2021. EB-2 and EB-3 India and China advance. In addition to final action dates and dates for filing for family– and employment-based petitions, the June Bulletin contains notes on the diversity visa (DV) category and DV category rank cut-offs that will apply in July.
USCIS announced that the Final Action Date Chart must be utilized for employment-based categories in June. Family-based 2A may use the Final Action Chart; all other family-based categories must use the Dates for Filing Chart.
For Family-Sponsored Filings: In the F2A category, there is a cutoff date on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. This means that applicants in the F2A category may file using the Final Action Dates chart in the Department of State Visa Bulletin for June 2021. For all the other family-sponsored preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for June 2021.
For Employment-Based Preference Filings: For all employment-based preference categories, you must use the Final Action Dates chart in the Department of State Visa Bulletin for June 2021.
The next “Chat with Charlie” will take place on Monday, May 24, 2021 at 1:00 p.m. EST to discuss the June Visa Bulletin. @TravelGov will host the next “Chat with Charlie” on its YouTube channel (https://www.youtube.com/user/TravelGov) to discuss information provided in the monthly Visa Bulletin. This month’s chat is scheduled to take place on May 24, 2021 at 1:00 p.m. EST to discuss the June Visa Bulletin. Questions can be emailed to VisaBulletin@state.gov ahead of the event with “Chat with Charlie Question” in the subject line. Questions will also be taken via the YouTube Live Chat and will be answered in real-time. The event is intended to address issues of general interest related to the content of the Visa Bulletin, and no policy, case, or post specific questions will be accepted.
3. DOL Further Delays Effective Date of Prevailing Wage Computation Final Rule
The Department of Labor has delayed a final rule on prevailing wage computations from May 14, 2021, until November 14, 2022.
The latest action includes corresponding delays in the rule’s transition dates until January 1, 2023, January 1, 2024, January 1, 2025, and January 1, 2026, respectively. For most job opportunities, the transition would occur in two steps. For job opportunities that will be filled by workers who are the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or are eligible for an extension of their H–1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, (2002), the transition would occur in four steps.
- Final rule; delay of effective and transition dates, Dept. of Labor, 86 Fed. Reg. 26164 (May 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-13/pdf/2021-10084.pdf
4. CBP Announces Policy Change on National Interest Exceptions at Port of Atlanta
Due to a “recent necessary policy change,” effective May 14, 2021, U.S. Customs and Border Protection (CBP) at the Port of Atlanta will only consider processing § 212(f) national interest exception (NIE) waiver requests for “urgent humanitarian reasons or those involving national security and/or law enforcement matters.” All other requests, including any requests currently pending with CBP Atlanta, “will need to be processed by the U.S. Embassy or Consulate,” CBP said.
On April 26, 2021, the Secretary of State made a national interest determination regarding categories of travelers to be excepted from Presidential Proclamations (PPs) 9984, 9992, and 10143 related to the spread of COVID-19. As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations, due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are seeking to provide vital support for critical infrastructure; journalists; and students and certain academics covered by exchange visitor programs, among others, may now qualify for a National Interest Exception (NIE).
- “National Interest Exceptions for Certain Travelers from China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland,” Dept. of State, May13, 2021, https://bit.ly/3bsOWqW
5. Afghan Translators/Interpreters Who Helped United States Seek Visas Promised to Them
An estimated 18,000 Afghan translators/interpreters and their families who have aided the U.S. military and government with translation services await pending Special Immigrant Visas. With the September 2021 deadline looming for the United States to withdraw American troops, pleas for visas to be issued quickly have been renewed.
Many such Afghans fear for their lives. The Lutheran Immigration and Refugee Service (LIRS) wrote to President Biden to urge him to “evacuate Afghan wartime allies who have already applied for the Special Immigrant Visa [SIV] program and their families to American territory.” According to LIRS, “[s]ince 2002, the U.S. government has employed Afghan allies to serve alongside U.S. troops, diplomats, and other government employees as translators, interpreters, cultural advisors, or support staff.” In recognition of the peril they face, LIRS noted, Congress enacted the Afghan SIV program in 2009 and “mandated that visa applications be processed within nine months.” The American Legion has also pleaded their case to the Biden administration and Congress.
- “Family of Slain Afghan U.S. Military Interpreter Headed to Houston After 10-Year Visa Delay,” Houston Public Media, May 14, 2021, https://www.houstonpublicmedia.org/articles/news/politics/immigration/2021/05/14/398056/family-of-slain-afghan-u-s-military-interpreter-headed-to-houston-after-10-year-visa-delay/
- “Thousands of Afghans and Iraqis Are Under Threat for Helping Americans. Now They Hope Biden Will Help Them Resettle in the United States,” Washington Post, Dec. 30, 2020, https://www.washingtonpost.com/politics/biden-refugees-visas/2020/12/30/572c00fc-3e4f-11eb-9453-fc36ba051781_story.html
- S. Veterans Scramble to Help Interpreters Left Behind,” American Legion, Apr. 29, 2021, https://www.legion.org/security/252361/us-veterans-scramble-help-interpreters-left-behind
- “Review of the Afghan Special Immigrant Visa Program,” Office of Inspector General, Dept. of State, June 2020, https://www.oversight.gov/sites/default/files/oig-reports/AUD-MERO-20-35.pdf
- “Recommendations to Provide Humanitarian Protections for Certain Afghan Civilians,” LIRS, May 12, 2021, https://www.lirs.org/wp-content/uploads/2021/05/LIRS-Letter-Requesting-Humanitarian-Protections-for-Certain-Afghan-Civilians_12-MAY-2021.pdf
6. USCIS Provides Guidance on Exemption to Temporary Need Requirement for Certain H-2B Workers in Guam and Marianas
U.S. Citizenship and Immigration Services (USCIS) issued guidance on May 13, 2021, effective immediately, regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions for certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands. Specifically, the guidance notes that the National Defense Authorization Act for fiscal year 2021 (FY 2021 NDAA) provides that an H-2B employer who qualifies under certain parameters is not required to demonstrate that the service or labor is temporary in nature if the employment start date is before December 31, 2023. Included are employers with contracts or subcontracts that are “supporting” or “adversely affected by” the military realignment, in addition to those that are “associated with” or “directly connected to” it. The FY 2021 NDAA states that priority will be given to federally funded military projects. “Adversely affected by” includes but is not limited to projects for which the military realignment “has caused a loss of business income or a negative impact on the availability of necessary labor or resources that is not purely speculative (that is, based on assertions with no documentation to support the claim.”
The exemption may be granted for certain contracts or subcontracts for labor or services required for performance of a contract or subcontract for construction, repairs, renovations, or facility services, “provided they have a non-speculative supporting relationship to, association with, are adversely affected by, or have a direct connection to the military realignment.”
- USCIS Policy Alert PA-2021-06, May 13, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210513-H2BNDAA.pdf
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.