Tag: Immigration Updates & FAQs

Presidential Proclamation (PP)  10052  suspending entry to the U.S. of certain nonimmigrants in  J, H and L status  expired March 31, 2021. The Biden Administration has declined to  extend the ban.

PP 10052 was initially implemented  by the Trump Administration in June 2020 with the stated rationale of protecting U.S. workers from the economic downtown stemming from the pandemic. The ban was later successfully challenged  by the U.S. Chambers of Commerce and other associations,  with a federal court invalidating significant portions of the ban, but limiting  the ruling to members of the plaintiff organizations.

What to Expect

Expiration of  PP 10052 is welcome news to U.S. companies, hospitals, universities and small businesses seeking to employ high-skilled and temporary workers, as well as multinational corporations seeking  to leverage the expertise of employees from overseas affiliate offices. Nevertheless, significant challenges remain in bringing nonimmigrants to the U.S.

• The regional COVID-related travel bans stemming from PP 10143 remain in place for the Schengen Area, the United Kingdom, Ireland, South Africa, Brazil, Iran and China. With limited exceptions, foreign nationals who have been physically present in these regions at any point during the 14-day period prior to arrival in the U.S. are prohibited from entering the U.S.
• The Department of State may issue National Interest Exemptions (NIEs) for certain individuals traveling to the U.S. from the Schengen Area, the United Kingdom and Ireland, but qualifying for an exemption is very restrictive.  Exemptions are limited to individuals seeking to enter the U.S.  to provide vital support for critical infrastructure, the public heath response, national security or other humanitarian considerations.
• With the termination of the nonimmigrant visa ban, which also had associated guidance for exemptions, it is not clear how travelers from Brazil, China, Iran and South Africa may qualify for an NIE. Gibney is monitoring Department of State guidance on this matter.
• Visa appointments at U.S. consular posts are likely to remain difficult to obtain  for the foreseeable future.  Consular posts worldwide continue to be impacted by the pandemic with many local health-related restrictions still in place. This continues to limit the ability of consular posts to process  cases for qualifying individuals.  Additionally, consular posts are prioritizing immigrant visa appointments pursuant to the revocation of the immigrant visa ban (PP 10014). Finally, after a year of suspended and limited consular operations,  significant backlogs exist for scheduling nonimmigrant and immigrant visa appointments.
• As a reminder, pursuant to CDC guidance, all international travelers to the U.S. age  2 years and older, including U.S. citizens and permanent residents, are required to present proof of a negative COVID-19 test result or documentation of recovery from COVID-19.  At this time, proof of COVID-19 vaccination does not exempt international travelers from the testing requirement.

Looking Ahead

As the U.S. and the rest of the world begin to loosen pandemic-related restrictions, opportunities for international travel and mobility  will increase. However,  considerable patience will be required as consular posts continue to grapple with appointment  backlogs, local health mandates and restrictions, and limited resources.   The lifting of the visa category ban will not mean that previously impacted individuals will be able to secure visas to travel to the U.S. immediately, and the COVID-related regional travel restrictions will continue to limit admission the U.S. until affirmatively lifted.  It is very important to confer with legal counsel prior to making international travel plans.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

Today USCIS announced that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 9, 2021 through March 25, 2021. H-1B petitions may be filed for selected registrations starting April 1, 2021.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If petitions are not filed for selected beneficiaries with the designated 90-day filing window, USCIS may conduct another lottery from the reserve “submitted’ registrations until the FY 2022 cap is reached. This was the case last year, when numerous “submitted” registrations were later selected for a second round of filings, after the initial 90-day filing period concluded.
• Selected: Indicates that the employer may file an FY 2022 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
• Denied: A duplicate registration was submitted by the same registrant for the same beneficiary; all registrations submitted for this beneficiary for FY 2022 are invalid.
• Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary in the applicable selected registration notice. Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2021.

Gibney will continue to monitor the FY 2022 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information, please contact your Gibney representative or email info@gibney.com.

The Trump Administration’s draconian  2019 Public Charge Final Rule  is no longer in effect.  U.S. Citizenship and Immigration Services (USCIS) announced it will revert to utilizing the public charge guidance that was in effect prior to implementation of the 2019 rule. With elimination of the rule,  Form I-944,  Declaration of Self Sufficiency, is no longer required in connection with adjustment of status (“green card”) applications and individuals  no longer have to respond to questions regarding the receipt of public benefits on the current version of Forms I-485, I-129 and I-539.

Background
The Trump Administration advanced the 2019 Public Charge Final Rule to impose a “wealth test” on intending immigrants and nonimmigrants.  The rule was almost immediately challenged as unlawful.  Several federal courts issued decisions invalidating or blocking enforcement of the rule, but the prior administration appealed the decisions at both the federal circuit court and U.S. Supreme Court level.    Upon taking office, the Biden Administration directed the Department of Homeland Security (DHS) to review the  2019 Public Charge Final  Rule and the ongoing federal court litigation.  DHS subsequently announced that it would not continue to appeal  judicial decisions invaliding the rule.  With dismissal of the appeals,  on March 9, 2021,  an earlier federal court decision from Illinois invaliding the rule took effect nationwide.  On March 15, 2021, the Department of Homeland Security published a final rule, effective March 9, 2021, removing the 2019 Public Charge Final Rule from the immigration regulations, and restoring the pre-2019 public charge guidance.

What This Means for Foreign Nationals
The 2019 Public Charge Rule, now vacated, had expanded the definition of public charge, potentially disqualifying large numbers of green card applicants, while also significantly increasing the burden of proof and evidence of income required for others.  Elimination of the rule is a significant step toward ending the chaos stemming from  publication of the rule in 2019 and restoring predictability to adjudication of adjustment of status applications.

• Elimination of rule will help to protect adjustment of status eligibility for many individuals, and will streamline the adjustment of status process, as submission  of the Form I-944, Declaration of Self Sufficiency, together with extensive supporting documentation,  is no longer required.
• If an adjustment of status applicant previously submitted Form I-944, the documentation will not be considered if the case is adjudicated after March 9, 2021.
• Applicants and petitioners seeking to  extend  or change of nonimmigrant status do not need to provide information related to the receipt of public benefits on Form I-129, Form I-129CW, Form I-539, and Form I-539A.
• USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.
• If USCIS issues a request for public charge evidence on a case filed before the rule was vacated, please contact your designated Gibney representative to evaluate the appropriate response.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On March 2, 2021, the U.S. Department of State issued revised guidance  further limiting eligibility for National Interest Exemptions (NIEs) for  travelers from the Schengen Area, the United Kingdom and Ireland whose admission to the U.S. is restricted by  Presidential Proclamation (PP) 10143.  PP 10143 restricts the  entry of travelers to the U.S. who were present within the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil and South Africa during the 14-day period preceding attempted entry to the U.S.  With limited exceptions, nonimmigrants traveling to the U.S. from these regions must obtain an NIE from the Department of State in order to enter the U.S.

In publishing its revised  guidance, the Department of State rescinded its prior national interest guidance and has narrowed eligibility for NIEs for travelers from the Schengen Area, the UK and Ireland.  Individuals traveling from these regions may request an NIE to enter the U.S. if providing vital support for critical infrastructure or if entering for purposes related to humanitarian considerations, the  public health response or national security.   As previously reported,  under the Department of State’s prior NIE guidance, certain technical experts, senior-level managers and executives, treaty-traders and investors, and professional athletes traveling to the U.S. from the restricted regions were generally eligible for  NIEs to gain admission to the U.S.    This will no longer be the case in all instances. Visas and NIEs issued pursuant to the previous guidance will not be revoked and remain valid. However, if a new visa or NIE is required, it may not be issued while PP 10143 remains in effect unless the request falls within the new eligibility criteria outlined above.

Notably, students with valid F-1 and M-1 visas traveling to the U.S.  from the Schengen  Area, the UK and Ireland do not require NIEs for admission (and students requiring an F-1 or M-1 visa to travel may apply for such visa pursuant to availability of visa services at the nearest embassy or consulate).

Due to rapidly evolving travel requirements and restrictions, individuals intending to apply for visas abroad or planning to travel to the U.S. should consult with immigration counsel prior to making any arrangements. For additional information, please contact your designated Gibney representative or email info@gibney.com.

Democrats in Congress have introduced the U.S. Citizenship Act of 2021, advancing the Biden Administration’s efforts for reform of the U.S. immigration system.  Democrats will need 60 votes in the U.S. Senate to overcome a filibuster.

The bill includes a broad swath of reforms affecting the U.S. undocumented population, the family-based and employment-based immigration systems, and border management. Notably, the bill would create an 8-year path to citizenship for undocumented individuals.  Given the challenge of passing comprehensive reforms, various provisions, such as the Dream Act, may be sectioned off and advanced where there may be greater bi-partisan support.

Key provisions affecting employers and foreign workers include:

• PhD holders in STEM fields from an accredited U.S. institution of higher education, individuals with an approved immigrant petition bearing a priority date more than 10 ago, and spouses and children of employment-based applicants would all be exempted from the numerical limitations on employment based immigrant visas, substantially reducing overall backlogs;
• Elimination of the 7% per-country ceiling on employment-based immigrant visas;
• Reduction of the EB-1 and EB-2 preference categories from 28.6% to 23.55%, and increase of the EB-3 category from 28.6% to 41.2% of the employment-based worldwide level;
• Expanding the limit on EB-3 unskilled workers from 10,000 to 40,000;
• Provisions for temporary limitations on immigrant visas for areas with high unemployment;
• Temporary pilot program for 10,000 additional visas for regional economic development, subject to the labor certification process;
• Discretion to prioritize employment-based nonimmigrant visas based on offered wages;
• Eliminating the requirement of non-immigrant intent for F-1 students pursuing a full course of study;
• Establishing age-out protections for H-4 dependent children who were younger than 18 years when first granted non-immigrant status;
• Eligibility for EAD work authorization for both spouses and children in H-4 status; and
• Max-out protections and eligibility for status extensions in 1-year increments and work authorization for F-1, H-1B, L-1 and O-1 visa holders with a PERM labor certification or I-140 immigrant petition filed more than 365 days ago.

Gibney will continue to monitor developments, and will work with clients to analyze the impact on foreign national employees.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Department of Homeland Security (DHS) announced that it will delay the effective date of the January 8, 2021 rule modifying the H-1B cap selection process  to prioritize high wage earners until December 31, 2021. This means that the fiscal year (FY) 2022 H-1B cap registration and selection process will proceed as it did last year, with selection based on a random lottery. The stated rationale for delaying the effective date of the January 8 rule is to provide USCIS with adequate time to complete system development, test system modifications, train staff, and conduct public outreach, though it was also noted that DHS leadership will further evaluate the legacy Trump Administration rule and its associated policies.

Additionally, today USCIS announced that the initial registration period for the FY 2022 H-1B cap will open March 9, 2021 at Noon Eastern Time (ET) and will close on March 25, 2021 at Noon ET.

FY 2022 H-1B CAP REGISTRATION – WHAT EMPLOYERS CAN EXPECT

Employers intending to file H-1B cap petitions for an employment start date of October 1, 2021 will have from March 9 to March 25 to electronically register each intended beneficiary and pay the associated $10 H-1B registration fee. The random H-1B cap lottery will be conducted after the registration period concludes, and employers will then be notified when to submit H-1B petitions for selected beneficiaries during a designated filing period expected to commence April 1. The agency may determine it is necessary to open an additional registration period later in the year if it does not receive enough registrations and subsequent petitions projected to reach the annual quota.

Gibney will continue to provide updates, and will be working with clients to prepare for the upcoming H-1B cap registration process.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as Department of Homeland Security (DHS) Secretary and President Biden signed three immigration orders aimed at reunifying children separated from their parents at the U.S.-Mexico border, addressing the U.S. southern border and asylum system, and improving the U.S. legal immigration system.

The latter, the Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans , stands to have the most direct impact on businesses hiring foreign workers. The order:

• Directs the White House Domestic Policy Council to create a task force to coordinate the federal government’s efforts to welcome immigrants, and improve and support immigration processes.
• Charges the Attorney General, the Secretary of State and the Secretary of DHS with
• reviewing existing regulations, orders, guidance and policies (collectively “agency action”) with a view to identifying barriers that impede access to immigration benefits and the fair and efficient adjudication of benefit applications.
• identifying agency actions that fail to promote access to the legal immigration system and rescinding or revising the policies and practices as appropriate.
• Submitting a plan within 90 days to advance policies consistent with improving and supporting immigration processes to welcome immigrants.
• Mandates immediate agency review of the public charge rule,  and requires agencies to address concerns with the policy and its impact on immigration processes and public health.
• Directs the Attorney General, the Secretary of State and the  Secretary of DHS to promote the naturalization process by eliminating barriers to naturalization, substantially reducing backlogs, improving the process, and promoting naturalization generally.

Impact Assessment

While the order does not advance a specific policy, its impact may be far reaching in the months ahead.  Numerous Trump Administration actions were implemented to create barriers to legal immigration, including agency action stemming from the Buy American, Hire American Executive Order . This included rescission of agency policies that gave deference to prior agency approval of benefits applications, and imposed a level of application scrutiny that exceeded statutory and regulatory authority. The result was a significant increase in requests for evidence, application backlogs, unconscionable adjudication delays, and denial of benefit applications.  U.S. businesses employing foreign nationals experienced a lack of predictability in adjudications, increased costs associated with sponsorship, interrupted  business continuity, and a loss of access to foreign talent generally.

Yesterday’s  order, together with last week’s order revoking the Buy American, Hire American order, signals that the Biden Administration  is set on reversing restrictionist Trump-era immigration policies with a view to restoring integrity and enhancing efficiency in the legal immigration system.   Additionally, and notably, DHS Secretary Mayorkas previously served as the director of U.S. Citizenship and Immigration Services (USCIS) under the Obama Administration. His experience leading USCIS – the benefits agency within the Department of Homeland Security – is another signal that the Biden Administration will prioritize and emphasize improving access to legal immigration benefits.

For additional information on the Biden Administration’s impact on U.S. immigration, please contact your designated Gibney representative or email info@gibney.com.

On its first day in office, the Biden Administration acted to reverse numerous hardline immigration policies from the prior administration and to advance immigration reforms.  Some action comes in the form of executive orders and directives that take effect immediately, while other initiatives will be advanced through legislation, requiring Congressional approval.

Regulatory Freeze Pending Administration Review

The White House issued a memorandum directing all federal agencies to immediately withdraw  pending regulations that have not yet been published in the Federal Register and to consider postponing for 60 days the effective dates of regulations that have been published but have not yet taken effect.  Impacted regulations include those advanced by U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) in the weeks following the election.

• The USCIS rule modifying the H-1B cap selection process to favor high-wage earners scheduled to take effect March 9, 2021 may be postponed until March 21, 2021, making it less likely to be implemented in time for the fiscal year (FY) 2022 H-1B cap selection process.
• A  DOL rule dramatically increasing prevailing wage requirements for H-1B and E-3 temporary visas and PERM labor certification sponsorship, reissued by DOL on January 14, 2021 and set to take effect March 15, 2021, is also now in suspense. Under the rule, implementation of the new prevailing wage scheme would occur as of July 1, 2021, outside of the 60 day moratorium period.  As a result, it is not clear whether this rule will be covered by the White House memorandum. An earlier version of the rule, published in October 2020, was struck down by a federal court as unlawful, and similar legal challenges are expected if the re-issued regulation remains in place.
• A rule aimed at amending how USCIS would determine whether there is an employer-employee relationship for the purpose of H-1B sponsorship was signed on January 14, 2021, but was not published. As such, it  has been withdrawn. The corresponding DOL guidance and policies, set to take effect 180 days from January 15, 2021, have also been withdrawn.

Travel Bans

• President Biden signed a  Proclamation on Ending Discriminatory Bans on Entry to the United States, revoking Trump era executive orders and proclamations  imposing visa restrictions on nationals from predominately Muslim-majority and African countries. The proclamation directs the Department of State to take action through its Embassies and Consulates to resume visa processing for impacted individuals and to develop a plan to redress visa denials and rejections issued under the prior bans.
• Just before leaving office, the Trump Administration announced a January 26, 2021 termination date for the Covid-19 regional  travel bans in place for individuals traveling to the U.S. from Europe, the United Kingdom, Ireland and Brazil. Notably, January 26 is the same day that CDC international traveler Covid testing requirements take effect. However, it has been widely reported that the Biden administration  intends to keep the Covid-19 regional travel bans in place along with the CDC’s Covid testing requirement for all international travel to the U.S.

DACA

• President Biden issued a memorandum directing the Secretary of Homeland Security and the Attorney General to take all action necessary and appropriate to preserve and fortify the Obama-era  Deferred Action for Childhood Arrivals (DACA)  program. The DACA program defers deportation of certain undocumented immigrants brought to the U.S. as children, often referred to as “Dreamers,” and provides work authorization.  The prior administration spent years trying to rescind the DACA program, but was ultimately constrained from doing so by the U.S. Supreme Court. Currently, USCIS instructions provide  that  eligible individuals may submit first-time requests for DACA classification as well as requests to renew DACA classification and extend work authorization.

Immigration Legislation

The Biden Administration introduced an immigration reform bill, the U.S. Citizenship Act of 2021, which, If enacted, would reportedly include provisions to:

• Create an earned roadmap to lawful permanent resident status and citizenship for certain undocumented immigrants residing in the U.S., expediting eligibility for Dreamers, individuals with temporary protected status (TPS), and agricultural workers.
• Clear employment-based immigrant visa (“green card”) backlogs, recapture unused visas from prior years, reduce lengthy  wait times for green card issuance, and eliminate per-country visa caps.
• Make  it easier for graduates of U.S. universities with advanced STEM degrees to remain in the U.S.
• Incentivize higher wages for non-immigrant and high skilled workers.
• Provide dependents  of H-1B visa holders with work authorization.
• Establish protections to prevent children from “aging out” of immigration benefits when they reach age 21.
• Create a pilot program to stimulate regional economic development, giving the Department of Homeland Security Authority to adjust green card allocation based on macro-economic conditions.
• Reform family-based immigration by clearing backlogs, recapturing unused visas, eliminating lengthy wait times for green cards, and increasing per-country caps.
• Increase Diversity Visas from 55,000 to 80,000 annually.
• Support asylum seekers and promote immigrant and refugee integration and citizenship.
• Supplement existing border security resources with improved technology and infrastructure.

With only narrow Democratic control in the U.S. Congress, and the competing need to combat  the pandemic and economic crisis, the Administration’s prospects for passing a sweeping immigration bill are  far from certain. Nonetheless it signals a new and more favorable outlook for immigration, and a significant departure from the restrictive policies advanced by the prior administration.

Gibney will closely monitor developments related to these initiatives in the weeks and months ahead and will provide updates as the Biden Administration’s immigration agenda develops and advances. For additional information, please contact your designated Gibney representative or email info@gibney.com.