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IMMIGRATION UPDATE 7.07.2021 — Monthly Summary

IMMIGRATION UPDATE 7.07.2021 — Monthly Summary

IMMIGRATION UPDATE – July 7, 2021

HEADLINES

THANK YOU FOR YOUR SERVICE

Honoring Independence Day, we pause to thank U.S. servicemen and women for their sacrifices. We extend our thanks to the more than 18,000 Afghans who have supported our troops abroad.

1.  Afghans To Be Evacuated Who Worked To Help United States, Biden Says – A group of affected Afghans will be brought to Guam or a third country to complete their application process before receiving Special Immigrant Visas.

TRAVEL

2. Extension of validity for National Interest Exceptions (NIEs) granted to travelers from China, Iran, Brazil, South Africa, the Schengen Area, the United Kingdom, Ireland, and India — On July 6th, the Department of State announced that NIEs issued by consular posts in the last 12 months have been automatically extended for 12 months from the date of issuance, and that they are valid for multiple entries.  This is a significant expansion of the prior rule allowing for only one entry within 30 days of the NIE issuance. 

3. State Dept. Provides Guidance on COVID-19 Restrictions and Exceptions, Including National Interest – The exceptions include general categories like U.S. citizens, lawful permanent residents, and certain types of workers, as well as national interest.

4. CBP Continues Temporary Travel Restrictions From Canada, Mexico Into United States Via Land POEs and Ferries – Temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through at least July 21, 2021.

NATURALIZATION

5. Biden Administration Kicks Off Cross-Agency Naturalization Campaign – The Biden administration announced an interagency campaign to promote naturalization “to all who are eligible.”

I-9 EMPLOYMENT ELIGIBILTY VERIFICATION

6. ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility – U.S. Immigration and Customs Enforcement announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

7. Justice Dept. Settles With Texas-Based Industrial Contractor to Resolve Immigration-Related Discrimination Claim – The settlement resolves claims that Tecon discriminated against a naturalized U.S. citizen based on her Venezuelan national origin by rejecting her U.S. passport and requiring other documents to prove her work authorization.

USCIS POLICY UPDATES

8. USCIS Updates Policies to Improve Immigration Services: Expedited Processing, RFEs/NOIDs, EADs – USCIS issued policy updates to clarify the criteria and circumstances for expedited processing; improve guidance for requests for evidence and notices of intent to deny; and increase the validity period for initial and renewal work authorization documents for certain noncitizens with pending adjustment of status applications.

9. Flexibilities Extended for Responding to Certain USCIS Requests – In response to the COVID-19 pandemic, USCIS is extending to September 30, 2021, previously announced flexibilities, providing individuals with an additional 60 days to respond to Requests for Additional Evidence and certain other requests issued by USCIS.

10. USCIS Announces Lockbox Filing Flexibilities – USCIS announced filing flexibilities to provide relief to certain applicants and petitioners affected by delays at a USCIS lockbox. These flexibilities only apply to benefit requests submitted to a USCIS lockbox and not to USCIS service centers or field offices.

11. Vermont Service Center Address Changes – As of June 25, 2021, the Vermont Service Center is no longer receiving any incoming mail at the St. Albans, Vermont, facility, which has been decommissioned. Mail sent to the previous address will be forwarded for one year.

12. USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals – Fully vaccinated individuals no longer have to wear a face covering. USCIS also eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms.

IMMIGRANT VISA BULLETIN

13. Final Action Dates Advance in Visa Bulletin for July; Possible Expiration of Employment Fifth and Regional Center Visa Categories Noted – The Department of State’s Visa Bulletin for July includes advances in final action dates for China and Vietnam. The bulletin also notes that because there has not yet been legislative action to extend the EB-5 program, final action dates for the I5 and R5 categories are listed as “Unavailable” for July.

H-1B CAP

14. USCIS Reports on FY 2022 H-1B Cap Registration Process – USCIS received 308,613 H-1B registrations during the initial registration period and selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations.

PREVAILING WAGES

15. District Court Vacates Final Rule Affecting Wages for H-1B, PERM Workers; OFLC Updates Implementation – In light of delays and a June district court order vacating the final rule, the operative version of the regulations “continues to be the version in place on October 7, 2020, prior to the publication” of the interim final rule, the Office of Foreign Labor Certification said.

EB-5 IMMIGRANT INVESTOR

16. USCIS Releases Guidance Following June 30 Expiration of EB-5 Regional Center Program – The agency released guidance on July 1, 2021, noting that the lapse does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program.

H-2B NON-AGRICULTURAL SEASONAL WORKERS

17. Employers Encouraged to Consider Supplemental H-2B Allocation in Filling Positions – If by July 8, 2021, fewer than 6,000 beneficiaries are requested toward the visas initially set aside for Northern Triangle countries, USCIS will announce by July 23 that the unused visas will be made available to employers “regardless of the beneficiary’s country of nationality, subject to the returning worker requirement.”

18. Labor Dept. Announces H-2B Application Filing Timeline for 2021 Peak Filing Season – The three-day filing window to submit an H-2B Application for Temporary Employment Certification requesting a work start date of October 1, 2021, opened on July 3, 2021.

TEMPORARY PROTECTED STATUS

19. Supreme Court Rules Unlawful Entry Precludes TPS Recipient’s Eligibility for LPR Status – In Sanchez v. Mayorkas, the U.S. Supreme Court held that a Temporary Protected Status recipient is not eligible for lawful permanent resident status merely because of the TPS. Eligibility for LPR status generally requires an “admission” into the United States.

20. DHS Designates Haiti for Temporary Protected Status – The Department of Homeland Security has designated Haiti for TPS for 18 months.

21. DHS Designates Burma (Myanmar) for Temporary Protected Status – The Department of Homeland Security has designated Burma (Myanmar) for TPS through November 25, 2022.

COMMONWEALTH OF NORTHERN MARIANA ISLANDS

22. Transitional Parole, Employment Authorization Extended for CNMI Long-Term Resident Status Applicants – USCIS will automatically extend parole and employment authorization, if applicable, for parolees who timely applied for Commonwealth of the Northern Mariana Islands long-term resident status.

DETAILS

 

1. Afghans To Be Evacuated Who Worked To Help United States, Biden Says

Following urgent pleas from lawmakers and affected Afghans, the United States will evacuate some Afghans who helped the country by working as interpreters and translators for the U.S. military and in other roles, officials said on June 24, 2021. “Those who helped us are not going to be left behind,” President Joe Biden said to reporters. The goal is to evacuate them before the U.S. military drawdown from Afghanistan in September.

According to reports, a group of affected Afghans will be brought to Guam or a third country to complete their application process before receiving Special Immigrant Visas (SIVs). The details are unclear about how many will be evacuated, which country they will go to, and how long the process will take. An estimated 18,000 Afghans are in the SIV pipeline, according to a Department of State spokesperson.

2. Extension of validity for National Interest Exceptions (NIEs) for Travelers from China, Iran, Brazil, South Africa, the Schengen Area, the United Kingdom, Ireland, and India

https://travel.state.gov/content/travel/en/News/visas-news/extension-validity-for-nies-for-china-iran-brazil-south-africa-schengen-uk-ireland-india.html

Last Updated: July 6, 2021

On June 29, 2021, the Department of State extended the validity of National Interest Exceptions (NIE) for travelers subject to restrictions under Presidential Proclamations (PPs) 9984, 9992, 10143, 10199, and similar subsequent PPs related to the spread of COVID-19. Unless otherwise indicated, existing NIEs will be valid for 12 months from the date of approval and for multiple entries, as long as they are used for the purpose under which they were granted.

This extension applies to travelers subject to these proclamations due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, Ireland, and India who currently have approved NIEs or who were granted NIEs in conjunction with a visa application.

Among the qualifications for NIEs are those traveling to provide vital support or executive direction to critical infrastructure; those traveling to provide vital support or executive direction for significant economic activity in the United States; journalists; travel due to extraordinary humanitarian circumstances; or travel in support of national security or public health.  Students holding F or M visas and travelers with immigrant or fiancé visas have been granted NIEs and do not need to obtain NIEs in advance from a consular section.

Travelers should contact the nearest U.S. embassy or consulate before traveling if they have not previously been approved for a NIE and have a valid visa in the appropriate class or have a valid ESTA authorization for travel under the Visa Waiver Program and seek to travel for purposes consistent with ESTA authorization. If an NIE is approved, they may travel on either a valid visa or ESTA authorization, as appropriate. Each approved NIE is valid for 12 months from the date of approval and may be used to travel to the United States multiple times for the purpose indicated in the approved NIE.

The 12 month and multiple entry extension applies retroactively to all existing National Interest Exceptions approved in the last 12 months. Travelers who have been approved for a National Interest Exception may travel to the United States using their existing NIE if it was approved in the last 12 months and if the purpose of travel is the same as the purpose for which it was granted.

Travelers who need visas and who believe their travel to be in the United States’ national interest should review the website of the nearest U.S. embassy or consulate for instructions on how to apply, bearing in mind that many consular sections have a backlog due to the pandemic. Approved visas applicants will be considered for an NIE as part of the application process.

3. State Dept. Provides Guidance on COVID-19 Restrictions and Exceptions, Including National Interest

The Department of State released guidance on June 24, 2021, on restrictions and exceptions under four presidential proclamations that suspend entry into the United States of noncitizens who were physically present in any of 33 countries during the 14-day period preceding their entry or attempted entry into the United States.

The exceptions include general categories like U.S. citizens, lawful permanent residents, and certain types of workers, as well as national interest.

4. CBP Continues Temporary Travel Restrictions From Canada, Mexico Into United States Via Land POEs and Ferries

The Department of Homeland Security (DHS) announced that temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through at least July 21, 2021. The restrictions only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined in the notice.

5. Biden Administration Kicks Off Cross-Agency Naturalization Campaign

On July 2, 2021, the Biden administration announced an interagency campaign to promote naturalization “to all who are eligible.” Secretary of Homeland Security Alejandro Mayorkas said that the strategy “will ensure that aspiring citizens are able to pursue naturalization through a clear and coordinated process.”

U.S. Citizenship and Immigration Services (USCIS) said that the interagency strategy for promoting naturalization reflects the collaboration of USCIS; the Departments of Education, Health and Human Services, State, Labor, Housing and Urban Development, Defense, Justice, Veterans Affairs, and Agriculture, and the Social Security Administration. These agencies are part of the interagency naturalization working group established pursuant to President Biden’s executive order 14012, issued in February, to prioritize citizenship education and awareness through capacity building and expanded partnerships.

Activities will include:

  • Use of data regarding potential naturalization-eligible populations;
  • Citizenship public education and awareness campaign;
  • National and community targeted outreach through traditional and social media;
  • Stakeholder engagement;
  • Promotion of citizenship and education resources;
  • The USCIS Outstanding Americans by Choice initiative;
  • The USCIS Citizenship and Integration Grant Program; and
  • Capacity building through collaboration and partnerships.

USCIS reported that more than 9,400 new citizens will be naturalized in 170 ceremonies between June 30 and July 7, 2021. This year’s Independence Day activities included a naturalization ceremony with President Biden at the White House on July 2 and a ceremony with Secretary Mayorkas administering the oath of allegiance virtually to 22 military service members serving overseas, which took place on June 30.

6. ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

The latest extension includes guidance for employees hired on or after June 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) process until they undertake non-remote employment on a “regular, consistent, or predictable basis,” or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If there are employees physically present at a work location, no exceptions are being implemented for in-person verification of identity and employment eligibility documentation.

7. Justice Dept. Settles With Texas-Based Industrial Contractor to Resolve Immigration-Related Discrimination Claim

The Department of Justice announced on June 15, 2021, that it reached a settlement with Tecon Services Inc. (Tecon), an industrial insulation, fireproofing, and painting contractor based in Texas. The settlement resolves claims that Tecon discriminated against a naturalized U.S. citizen based on her Venezuelan national origin by rejecting her U.S. passport and requiring other documents to prove her work authorization, in violation of the anti-discrimination provisions of the Immigration and Nationality Act.

8. USCIS Updates Policies to Improve Immigration Services: Expedited Processing, RFEs/NOIDs, EADs

U.S. Citizenship and Immigration Services (USCIS) issued new policy updates to clarify the criteria and circumstances for expedited processing; improve guidance for requests for evidence (RFE) and notices of intent to deny (NOID); and increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

Secretary of Homeland Security Alejandro Mayorkas said the agency is “taking action to eliminate policies that fail to promote access to the legal immigration system, and will continue to make improvements that help individuals navigate the path to citizenship, and that modernize our immigration system.” Acting USCIS Director Tracy Renaud said that USCIS is “committed to promoting policies and procedures that ensure we operate in a fair, efficient, and humane manner that reflects America’s heritage as a land of opportunity for those who seek it.”

Highlights of the updates include:

Expedited Processing

USCIS is providing enhanced guidance to clarify when expedited processing of a benefit request may be warranted. The new guidance also permits nonprofit organizations whose request is “in furtherance of the cultural and social interests of the United States” to request that a benefit be considered for expedited processing regardless of whether premium processing is available for that benefit.

Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

USCIS is returning to the adjudicative principles of a June 2013 memo, and is rescinding a July 2018 memo that allowed agency officers to deny certain immigration benefit requests instead of first issuing an RFE or NOID. The updated policy will give benefit requestors “an opportunity to correct innocent mistakes and unintentional omissions.”

Employment Authorization Documents (EADs)

The one-year validity period on both initial and renewal EADs is increased to two years for certain adjustment-of-status applicants. This is expected “to reduce the number of employment authorization requests USCIS receives and allow the agency to shift limited resources to other priority areas.”

9. Flexibilities Extended for Responding to Certain USCIS Requests

In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) is extending to September 30, 2021, the flexibilities it announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain requests, including:

  • Requests for Evidence
  • Continuations to Request Evidence (N-14)
  • Notices of Intent to Deny, Revoke, or Rescind
  • Notices of Intent to Terminate (regional centers)
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if (1) the form was filed up to 60 calendar days from the issuance of a decision USCIS made; and the agency made that decision from March 1, 2020, through September 30, 2021. USCIS said it will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, the agency will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before taking any action.

10. USCIS Announces Lockbox Filing Flexibilities

U.S. Citizenship and Immigration Services (USCIS) announced filing flexibilities to provide relief to certain applicants and petitioners affected by delays at a USCIS lockbox. These flexibilities only apply to benefit requests submitted to a USCIS lockbox and not to USCIS service centers or field offices, the agency said.

The following temporary flexibilities are effective until August 9, 2021:

  • If an applicant/petitioner submitted a benefit request to a USCIS lockbox between October 1, 2020, and April 1, 2021, and that request was rejected during that timeframe solely due to a filing fee payment that expired while the benefit request was awaiting processing, the applicant/petitioner may resubmit the request with a new fee payment. If USCIS concurs that it rejected the benefit request because of the delay, USCIS will deem the request to have been received on the initial filing date it was first received and waive the $30 dishonored check fee.
  • USCIS will allow applicants/petitioners to submit documentation with a benefit request resubmission demonstrating that because of the time that elapsed between when a benefit request was originally submitted to a USCIS lockbox and when USCIS rejected it, an applicant, co-applicant, beneficiary, or derivative has reached an age that makes them no longer eligible to file for the benefit requested. If USCIS agrees that the delayed rejection caused the person to be ineligible due to age, USCIS will accept the request and deem it to have been received on the date the initial benefit request was received. This flexibility does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.

Applicants and petitioners can contact USCIS to verify that previously filed benefit requests were not rejected in error. If USCIS concurs, it may allow applicants and petitioners to resubmit an erroneously rejected benefit request and deem the benefit request to have been received on the date the initial benefit request was first received at a USCIS lockbox, the agency said.

11. Vermont Service Center Address Changes

U.S. Citizenship and Immigration Services (USCIS) announced that as of June 25, 2021, the Vermont Service Center is no longer receiving any incoming mail at the St. Albans, Vermont, facility, which is being decommissioned.

Mail sent to the previous address will be forwarded for one year, but any mail sent to the previous addresses after June 2022 may be returned to the sender by the U.S. Postal Service or the courier service used.

A chart in the USCIS alert lists the updated addresses. The alert states that senders should continue to use the St. Albans addresses in the chart under “Previous Address” through June 24, 2021.

12. USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals

Due to updated guidance from the Centers for Disease Control and Prevention, U.S. Citizenship and Immigration Services (USCIS) has updated its visitor policy. Fully vaccinated individuals no longer have to wear a face covering. Individuals two years old and older who are not fully vaccinated must still wear a face covering.

“Fully vaccinated” is defined as at least two weeks having passed after receiving a second dose in a two-dose series or at least two weeks having passed after receiving a dose of a single-dose vaccine.

USCIS also eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms. Those who have returned from domestic air, international air, or cruise ship travel in the past 10 days may enter USCIS facilities if they are fully vaccinated. Individuals who have been in close contact (within six feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the previous 14 days may also enter USCIS facilities if they are fully vaccinated. Healthcare workers who consistently wear an N95 respirator and proper personal protective equipment or equivalent when in contact with COVID-19-positive individuals continue to be exempt from reporting close contact, USCIS said.

In Department of Homeland Security-controlled spaces, “this guidance supersedes state, local, tribal, or territorial rules and regulations regarding face coverings,” USCIS said.

13. Final Action Dates Advance in Visa Bulletin for July; Possible Expiration of Employment Fifth and Regional Center Visa Categories Noted

The Department of State’s Visa Bulletin for July includes advances in final action dates for China (moving forward almost two months, to November 8, 2015), and Vietnam (leaping forward almost two years, to April 1, 2020).

The bulletin also notes that since there has not yet been legislative action to extend the EB-5 regional center program, final action dates for the I5 and R5 categories are listed as “Unavailable” for July. If Congress extends the regional center program for July, the final action dates would immediately become “Current” for July for all countries except China-mainland born I5 and R5, which would be subject to a November 8, 2015, final action date, and Vietnam I5 and R5, which would be subject to an April 1, 2020, final action date, the bulletin states.

14. USCIS Reports on FY 2022 H-1B Cap Registration Process

U.S. Citizenship and Immigration Services (USCIS) reported that the H-1B cap electronic registration process was “again well-received by users, who provided a high satisfaction score with the system for FY [fiscal year] 2022 (4.87 out of 5).” USCIS received 308,613 H-1B registrations during the initial registration period and selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations. More than 37,000 prospective petitioners submitted registrations. Roughly 48 percent of all registrations requested consideration under the advanced degree exemption, USCIS said.

USCIS noted that for FY 2021, the agency received 274,237 H-1B registrations and initially selected 106,100 registrations projected as needed to reach the FY 2021 numerical allocations. USCIS conducted a second selection in August 2020 of an additional 18,315 registrations due to low filing volume from the initial selection. This resulted in a total of 124,415 selected registrations for FY 2021, the agency said.

15. District Court Vacates Final Rule Affecting Wages for H-1B, PERM Workers; OFLC Updates Implementation 

On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce v. DHS, vacating the final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” and remanding the matter to the U.S. Department of Labor. The Department did not oppose the vacating of the rule. In its motion, the Department stated that until the agency conducts further review, it “cannot say for certain the extent to which the final rule may need to be revised, but the concerns raised to this point suggest that there may need to be significant changes to the rulemaking going forward.”

The Department published the final rule on January 14, 2021, following district court orders that set aside an October 8, 2020, interim final rule. The final rule amended the Department’s regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis under the PERM, H-1B, H-1B1, or E-3 visa programs. The Department has twice delayed the effective date of the final rule. In light of these delays and now the June order vacating the final rule, the operative version of the regulations at 20 CFR §§ 656.40 and 655.731 “continues to be the version in place on October 7, 2020, prior to the publication” of the interim final rule, the Office of Foreign Labor Certification said.

The Department will need to issue a new regulation if it wishes to change the current prevailing wage for high-skilled foreign nationals. In April 2021, the Department requested information from the public on data sources for calculating the prevailing wage for H-1B visa holders and employment-based immigrants. DOL may use the information it received from the public if it decides to make changes to the prevailing wage system for foreign-born professionals.

16. USCIS Releases Guidance Following June 30 Expiration of EB-5 Regional Center Program

The EB-5 Immigrant Investor Regional Center Program expired on June 30, 2021. U.S. Citizenship and Immigration Services released related guidance on July 1, 2021, noting that the lapse does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. Due to the lapse, USCIS will reject the following forms received on or after July 1, 2021:

  • Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
  • Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.

USCIS said it will continue to accept and review Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, including those filed on or after July 1, 2021. USCIS is rejecting all Forms I-485, Application to Register Permanent Residence or Adjust Status, and any associated Forms I-765, Application for Employment Authorization, and Forms I-131, Application for Travel Document, based on an approved Regional Center Form I-526.

17. Employers Encouraged to Consider Supplemental H-2B Allocation in Filling Positions

Following up on a temporary final rule issued on May 25, 2021, that made 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 the additional workers, U.S. Citizenship and Immigration Services (USCIS) said on June 24, 2021, that it “strongly encourages qualified U.S. employers to consider” the supplemental allocation of 6,000 visas initially reserved for nationals of Northern Triangle countries (Honduras, El Salvador, and Guatemala) in filling positions for which they cannot find qualified and available U.S. workers.

If by July 8, 2021, fewer than 6,000 beneficiaries are requested toward the visas initially set aside for Northern Triangle countries, USCIS will announce by July 23 that the unused visas will be made available to employers “regardless of the beneficiary’s country of nationality, subject to the returning worker requirement.”

USCIS announced the information above in an email broadcast on June 24, 2021.

18. Labor Dept. Announces H-2B Application Filing Timeline for 2021 Peak Filing Season

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers and other interested stakeholders on June 23, 2021, that the three-day filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting a work start date of October 1, 2021, opened on July 3, 2021, at 12 a.m. ET and closed on July 5, 2021, at 11:59 p.m. ET. This three-day period was the earliest an employer could file an application for an October 1, 2021, work start date, which is the first day of the semiannual visa allotment for the first half of fiscal year 2022. OFLC said that employers seeking start dates of October 2, 2021, or later must comply with the timeliness requirements at 20 CFR § 655.15(b).

OFLC said that H-2B applications requesting an October 1, 2021, work start date will be denied if they are filed before the start date.

OFLC will randomly order for processing all H-2B applications requesting a work start date of October 1, 2021, that are filed during the three-day filing window using randomization procedures published in the Federal Register on March 4, 2019.

19. Supreme Court Rules Unlawful Entry Precludes TPS Recipient’s Eligibility for LPR Status

In Sanchez v. Mayorkas, decided June 7, 2021, the U.S. Supreme Court held that a Temporary Protected Status (TPS) recipient is not eligible for lawful permanent resident (LPR) status merely because of the TPS. Eligibility for LPR status generally requires an “admission” into the United States—defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”—which precludes TPS recipients who entered the United States unlawfully from eligibility for LPR status.

20. DHS Designates Haiti for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Haiti for temporary protected status (TPS) for 18 months.

TPS will apply only to those individuals who are already residing in the United States as of May 21, 2021, and meet all other requirements. Those who attempt to travel to the United States after this announcement will not be eligible for TPS and may be repatriated, DHS warned. Haiti’s 18-month designation will take effect on the publication date of the Federal Register notice, to come shortly. The notice will provide instructions for applying for TPS and employment authorization documentation.

21. DHS Designates Burma (Myanmar) for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Burma (Myanmar) for temporary protected status (TPS) through November 25, 2022. The designation allows an estimated 1,600 Burmese nationals (or individuals having no nationality who last habitually resided in Burma) who have been continuously residing in the United States since March 11, 2021, and continuously physically present in the United States since May 25, 2021, to file initial applications for TPS.

The 180-day initial registration period began on May 25, 2021, and runs through November 22, 2021. Applicants may also be eligible to apply for TPS-related employment authorization documents and for travel authorization.

22. Transitional Parole, Employment Authorization Extended for CNMI Long-Term Resident Status Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on June 16, 2021, that it will automatically extend parole and employment authorization, if applicable, for parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.

This specific extension of parole applies only to current parolees who timely filed Form I-955, Application for CNMI Long-Term Resident Status, and Form I-765, Application for Employment Authorization, and whose applications remain pending on June 30, 2021, the agency said. USCIS will automatically extend their parole (and employment authorization, if applicable) without interruption through December 30, 2021, or the date on which USCIS makes a final decision on their Forms I‑955 and I-765, whichever is earlier.

For eligible parolees whose timely filed Forms I-955 and I-765 remain pending on June 30, 2021, and who have an Employment Authorization Document (EAD), if applicable, expiring on or before June 30, 2021, the USCIS alert lists the documentation that will serve as evidence of identity and work authorization for Form I-9, Employment Eligibility Verification, purposes until December 30, 2021 (or the date on which USCIS makes a final decision on their long-term resident status application, whichever is earlier):

I-94/E-VERIFY WEBINARS

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

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.

General 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)

NAFSA

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

–        https://www.dhs.gov/coronavirus-news-updates

–        https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

USCIS: USCIS.gov/coronavirus

ICE:

–        Overview and FAQs: https://www.ice.gov/coronavirus

–       Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response

ReqsCleanFacilities.pdf

CBP:

–        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/

Justice Department

Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

AGENCY TWITTER ACCOUNTS

EOIR: @DOJ_EOIR

ICE: @ICEgov

Study in the States: @StudyinStates

USCIS: @USCIS

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.

 

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