In this issue
- Bipartisan Bill Introduced in Senate Would Provide Up to 40,000 Unused Immigrant Visas for Doctors, Nurses
- USCIS Completes Initial FY 2022 H-1B Cap Season Selections; Petitions May Be Filed Now
- DHS Extends I-9 Requirement Flexibility Until May 31, 2021
- "Blank Space" Criteria Eliminated for Rejection of Forms
- ICE Announces New SEVIS Process for Cap-Gap Extensions
- State Dept. Issues Update on Suspension of Entry for Certain Nonimmigrants
- Class Action Filed Against DHS for L-2 and H-4 Processing Delays
- USCIS Extends Flexibilities for Responding to Agency Requests
- SEVP Reports 2020 Drop in International Student Enrollment
- State Dept. Proposes Increase in Passport Security Surcharge
- USCIS Issues Guidance on P-1A Internationally Recognized Athletes
- DHS Withdraws Affidavit of Support Proposed Rule
- USCIS Stops Applying Public Charge Final Rule to All Pending Applications and Petitions
- CBP Extends Temporary Travel Restrictions Between U.S. and Canada/Mexico
- DHS Rescinds Public Charge Rule, Withdraws Appeals of Injunctions Blocking It
- State Dept. Releases Guidance for Those Previously Refused Visas Under Travel Bans
- State Dept. Extends Expansion of Interview Waiver Eligibility
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.
USCIS Completes Initial FY 2022 H-1B Cap Season Selections; Petitions May Be Filed Now
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 period for petitions began on April 1, 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)."
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.
"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.
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.
State Dept. Issues Update on Suspension of Entry for Certain Nonimmigrants
The Department of State issued an update on Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants. That proclamation expired on March 31, 2021.
The Department said that applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing "phased resumption of visa services" guidance. Visa applicants who were previously refused visas due to the restrictions "may reapply by submitting a new application including a new fee."
The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis, the Department’s said: "Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on the services that post is currently offering."
Class Action Filed Against DHS for L-2 and H-4 Processing Delays
On March 22, 2021, the American Immigration Lawyers Association (AILA) and Wasden Banias, LLP, filed a class action lawsuit against the Department of Homeland Security (DHS), challenging processing delays on extensions of status and employment authorization documents (EADs) for H-4 and L-2 nonimmigrant spouses.
AILA President Jennifer Minear said, "DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 nonimmigrants, provide automatic work authorization while DHS processes EAD renewal requests, and allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiration to prevent gaps in work authorization.'
USCIS Extends Flexibilities for Responding to Agency Requests
U.S. Citizenship and Immigration Services (USCIS) has extended flexibilities in response to the ongoing COVID-19 pandemic. USCIS will consider a response to certain 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. This flexibility applies to the documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and June 30, 2021, inclusive.
Affected documents include requests for evidence; continuations to request evidence (N-14); notices of intent to deny, revoke, rescind, or terminate regional centers; and motions to reopen an N-400 pursuant to 8 CFR 335.5.
SEVP Reports 2020 Drop in International Student Enrollment
U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program (SEVP) reported a drop of 72 percent in new international student enrollment in U.S. schools in 2020 as compared to calendar year 2019. Decreases were attributed to the COVID-19 pandemic and Trump-era immigration policies. The annual report, which presents data from the Student and Exchange Visitor Information System, also noted that international students chose business administration as a major most often in 2020, followed by second-language learning and computer science.
Also, according to the report:
- The total number of SEVIS records for active F-1 and M-1 students was 1,251,569 in calendar year 2020, a decrease of 17.86 percent from calendar year 2019.
- There were 122,699 pre- and post-completion optional practical training (OPT) students with an employment authorization document who reported working for an employer in calendar year 2020, compared to 138,898 in calendar year 2019—a nearly 12 percent decrease.
- Chinese student enrollment declined in 2020 compared with 2019 (down by 91,936). Indian student enrollment also decreased (down by 41,761 in 2020 versus 2019).
State Dept. Proposes Increase in Passport Security Surcharge
The Department of State issued a proposed rule on March 26, 2021, to raise the passport security surcharge from $60 to $80.
Comments are due by May 25, 2021.
USCIS Issues Guidance on P-1A Internationally Recognized Athletes
U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on internationally recognized athletes (P-1A nonimmigrants). The update in the USCIS Policy Manual provides more detailed guidance on the required prospective level of performance and provides USCIS's interpretation of, and examples related to, the undefined regulatory phrase, "major United States sports league or team" as it relates to internationally recognized P-1A athletes.
The guidance clarifies that "major United States sports league" is interpreted as "one that has a distinguished reputation commensurate with an internationally recognized level of performance, and "major United States sports team" means "a team that participates in such a league."
DHS Withdraws Affidavit of Support Proposed Rule
On March 19, 2021, the Department of Homeland Security (DHS) announced the withdrawal of a proposed rule, "Affidavit of Support on Behalf of Immigrants," published on October 2, 2020. The agency said that by withdrawing the rule, "DHS aims to reduce barriers and alleviate burdens on American families who wish to sponsor individuals immigrating to the U.S. within the legal immigration system." The withdrawal notice will be published in the Federal Register on March 22, 2021.
The proposed rule would have revised DHS regulations governing affidavit of support requirements. The withdrawal follows an executive order President Biden issued on February 2, 2021, "Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans," which revoked a related 2019 presidential memorandum.
USCIS Stops Applying Public Charge Final Rule to All Pending Applications and Petitions
U.S. Citizenship and Immigration Services (USCIS) stopped applying the public charge final rule to all pending applications and petitions on March 9, 2021. The agency removed content related to the vacated rule from the affected USCIS forms and posted updated versions of affected forms.
Starting April 19, 2021, USCIS will accept only the 03/10/21 edition of these forms: I-864, I-864A, I-864EZ, I-864W; I-539, I-539A; I-129CW, I-129CWR; I-129; I-485, I-485A, I-485J; and I-912.
CBP Extends Temporary Travel Restrictions Between 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 April 21, 2021. Travel will be limited to that deemed "essential," due to continued transmission of the virus associated with the COVID-19 pandemic.
DHS Rescinds Public Charge Rule, Withdraws Appeals of Injunctions Blocking It
The Department of Homeland Security (DHS) rescinded regulations resulting from a final rule issued in August 2019 that was vacated by a federal district court. Under the now-rescinded rule, the government could deny applications for green cards, temporary nonimmigrant status, and naturalization if the government found they relied on—or were at risk of relying on—public benefits. The Biden administration also withdrew the federal government's appeals of injunctions blocking the DHS public charge rule. However, 11 Republican-led states said that they plan to ask courts to continue the litigation.
USCIS will issue updated guidance on affected forms. In the interim, USCIS said it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Forms I-129, I-129CW, I-539, or I-539A based on whether the public benefits questions (Forms I-129 (Part 6), I-129CW (Part 6), I-539 (Part 5), and I-539A (Part 3)) have been completed or left blank. Those issued Requests For Evidence (RFEs) and Notices of Intent to Deny (NOIDs) will not need to submit information or documents solely as required by the public charge rule. However, all other requests raised in the RFE/NOID must be answered.
State Dept. Releases Guidance for Those Previously Refused Visas Under Travel Bans
On March 10, 2021, the Department of State issued guidance in response to President Biden's signing of two proclamations on January 20, 2021, that ended travel bans on certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.
Following the Department's review, eligible immigrant visa applicants whose entry was refused previously under the travel bans and who did not qualify for waivers before January 20, 2020, may submit new visa applications. Those whose entry was refused under the bans and were determined not to qualify for a waiver on or after January 20, 2020, may request their local embassy or consulate to reconsider their cases within one year of the date of waiver refusal without submitting a new application or fee.
Nonimmigrant visa applicants whose entry was refused previously due to the travel bans and who did not qualify for waivers may submit new visa applications.
The Department can immediately process visa applications for eligible individuals from the affected countries. However, local U.S. embassies or consulates may not be able to schedule all affected applicants for visa interviews immediately due to COVID-19-related restrictions. Applicants should consult the website of their nearest U.S. embassy or consulate to determine if their cases qualify for expedited processing.
State Dept. Extends Expansion of Interview Waiver Eligibility
The Department of State, in consultation with the Department of Homeland Security, extended until December 31, 2021, a temporary expansion of the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification to those whose nonimmigrant visas expired within 48 months. The temporary policy was due to expire March 31, 2021.
Previously, only those applicants whose nonimmigrant visas expired within 24 months were eligible for interview waivers. This change "will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff," the Department of State said. Travelers should review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: