WEEKLY IMMIGRATION UPDATE – May 24, 2021
1. CBP Extends Temporary Travel Restrictions Between the U.S. and Canada/ Mexico – Land border ports of entry crossing restriction to essential travel extended through at least June 21, 2021.
2. DHS Announces Open Registration for Temporary Protected Status for Burma — The Department of Homeland Security today published a Federal Register notice (FRN) designating Burma for Temporary Protected Status (TPS) for 18 months, effective May 25, 2021, through Nov. 25, 2022.
3. DHS Issues Final Rule to Remove Vacated H-1B Rule – The vacated interim final rule, issued in October 2020, made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.
4. USCIS Extends SAVE Records Download Deadline to June 4, 2021 – U.S. Citizenship and Immigration Services has extended the deadline to June 4, 2021, for SAVE users to download older case information before USCIS disposes of it. This applies to SAVE records that are more than 10 years old (those dated on or before December 31, 2010).
5. DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap – The Departments of Homeland Security and Labor published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for nationals of Honduras, El Salvador, and Guatemala.
6. ETA Proposes Revision to CW-1 Application for Temporary Employment Certification in Marianas – The information collected through the form remains unchanged.
7. State Dept. Announces Updated Interpretation of Acquisition of Citizenship at Birth– The Department of State announced on May 18, 2021, an update in its interpretation and application of the requirements for acquisition of U.S. citizenship at birth in light of advances in assisted reproductive technology.
1. CBP Extends Temporary Travel Restrictions Between the U.S. and Canada/ Mexico
U.S. Customs and Border Protection announced that temporary travel restrictions between the United States and Canada, and between the United States and Mexico, at land ports of entry along the border (including passenger ferry services and pleasure boat travel) will remain in effect through June 21, 2021, and may be extended thereafter. Travel continues to be limited to that deemed “essential.”
- Temporary Travel Restrictions to Land Border and Ferries Between the United States, Canada and Mexico, https://www.dhs.gov/publication/notification-temporary-travel-restrictions-applicable-land-ports-entry-and-ferries
- COVID-19 Related Travel Restrictions across the U.S. Borders with Canada and Mexico: These measures were implemented on March 21, 2020 and were originally in place for 30 days, subject to reevaluation and further extension in light of the fluid nature of the coronavirus pandemic. These measures were once again extended until June 21, 2021. This action does not apply to air, rail, or sea travel at this time, but does apply to commuter rail and ferry travel.
2. DHS Announces Open Registration for Temporary Protected Status for Burma
The Department of Homeland Security today published a Federal Register notice (FRN) designating Burma for Temporary Protected Status (TPS) for 18 months, effective May 25, 2021, through Nov. 25, 2022. Secretary of Homeland Security Alejandro N. Mayorkas previously announced on March 12 that Burma would be designated for TPS.
The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.
The Secretary may designate a country for TPS due to the following temporary conditions in the country:
- Ongoing armed conflict (such as civil war)
- An environmental disaster (such as earthquake or hurricane), or an epidemic
- Other extraordinary and temporary conditions
During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):
- Are not removable from the United States
- Can obtain an employment authorization document (EAD)
- May be granted travel authorization
- DHS Announces Open Registration for Temporary Protected Status for Burma
3. DHS Issues Final Rule to Remove Vacated H-1B Rule
The Department of Homeland Security issued a final rule, effective May 19, 2021, that removes an interim final rule issued in October 2020 and later vacated by a federal district court, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” The interim final rule made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.
The final rule removes from the Code of Federal Regulations the regulatory text that DHS promulgated in the October 2020 interim final rule and restores the regulatory text to appear as it did before.
- Final rule, DHS, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10489.pdf
- Vacated interim final rule, October 8, 2020, https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22347.pdf
4. USCIS Extends SAVE Records Download Deadline to June 4, 2021
The Systematic Alien Verification for Entitlements (SAVE) program announced that U.S. Citizenship and Immigration Services has extended the deadline to June 4, 2021, for SAVE users to download older case information before USCIS disposes of it. This applies to SAVE records that are more than 10 years old (those dated on or before December 31, 2010).
The downloadable Historic Records Report “provides data about each SAVE case that is more than 10 years old and slated for deletion in accordance with the governing National Archives and Records Administration (NARA) Retention and Disposal schedule,” SAVE explained. The data includes basic SAVE verification case information. The report is available annually to SAVE Super Users for about 90 days to allow user agencies to download and retain information about these cases before their deletion.
- “SAVE Instructions to Download Historic Records Report Tip Sheet,” https://www.uscis.gov/sites/default/files/document/guides/Instructions_to_Download_NARA_Reports_in_SAVE.pdf
5. DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap
The Departments of Homeland Security (DHS) and Labor (DOL) published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year (FY) 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for workers from Honduras, El Salvador, and Guatemala (Northern Triangle).
The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.
USCIS Acting Director Tracy L. Renaud said that the rule “requires that employers take additional steps to recruit U.S. workers, and provides for ‘portability,’ which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved.” She noted that portability enables H-2B workers to “change employers more quickly if they encounter unsafe or abusive working conditions.” She said DHS and DOL “will conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”
Starting May 25, 2021, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate that their business is likely to suffer irreparable harm without a supplemental workforce.
- “U.S. Departments of Homeland Security and Labor Issue Joint Rule Supplementing H-2B Visa Cap,” May 21, 2021, https://www.uscis.gov/news/news-releases/us-departments-of-homeland-security-and-labor-issue-joint-rule-supplementing-h-2b-visa-cap
6. ETA Proposes Revision to CW-1 Application for Temporary Employment Certification in Marianas
The Department of Labor’s Employment and Training Administration (ETA) proposes to amend Form ETA-9141C, Application for Prevailing Wage Determination, and its instructions, “to make sure this form, which is specific to the CW-1 program, conforms to the information collected through the general Form ETA-9141, Application for Prevailing Wage Determination (Form ETA-9141C),” used by employers in connection with prevailing wage requests for other labor certification application programs and for labor condition applications. The information collected through the form remains unchanged.
The CW-1 nonimmigrant visa program permits employers who meet program requirements to hire nonimmigrant workers temporarily in the Commonwealth of the Northern Mariana Islands to perform services or labor based on the employer’s need.
The notice informs the public of the Department’s request to seek an extension of the validity of this information collection while also revising the Form-9141C, and its instructions, and invites comments from the public for 60 days. The deadline for comments is July 19, 2021.
- Office of Foreign Labor Certification notice, May 19, 2021, https://www.dol.gov/agencies/eta/foreign-labor
- Federal Register notice, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10529.pdf
- Supporting statement, https://bit.ly/345x69h
7. State Dept. Announces Updated Interpretation of Acquisition of Citizenship at Birth
The Department of State announced on May 18, 2021, an update in its interpretation and application of the requirements for acquisition of U.S. citizenship at birth in light of advances in assisted reproductive technology. Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, “will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the [Immigration and Nationality Act’s] other requirements.” Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.
Requirements for children born to unmarried parents remain unchanged.
- U.S. Citizenship Transmission and Assisted Reproductive Technology,” May 18, 2021, https://www.state.gov/u-s-citizenship-transmission-and-assisted-reproductive-technology/
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.