Changes are Coming to Immigration Law
President Biden Revokes Trump-Era Ban on Entry of Many Immigrants; State Dept. Issues Instructions on Exceptions to Nonimmigrant Ban
On February 24, 2021, President Biden revoked former President Trump’s proclamation issued in April 2020 that banned many immigrants from entering the United States.
Biden Proclamation Revoking Immigrant Ban
Included in the Trump administration’s freeze on immigrant admissions were green cards for new immigrants and certain family members.
President Biden’s proclamation states that the Trump-era ban, whose stated purpose was to prevent entry by those who presented a risk to the U.S. labor market during the coronavirus outbreak, does not advance the interests of the United States. “To the contrary, it harms the United States” and “harms industries in the United States that utilize talent from around the world,” the new proclamation states. It also “harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received” fiscal year 2020 diversity visas.
The Biden proclamation orders the Departments of State, Labor, and Homeland Security to review any related regulations, orders, guidance, policies, or other agency actions and, as appropriate, issue revised guidance consistent with the new proclamation.
DOS Instructions on Exceptions to Nonimmigrant Ban
The new Biden proclamation did not lift a Trump-era ban on certain H-1B, H-2B, L-1, and J-1 temporary work visas, set to expire on March 31, 2021. It is unclear whether the Biden administration plans to revoke that ban before it expires. In the meantime, the Department of State announced on February 24, 2021, that those who believe they may qualify for a national interest or other exception should “follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.”
- “A Proclamation on Revoking Proclamation 10014,” Feb. 24, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/
- “National Interest Exceptions to Presidential Proclamation 10052,” DOS, Feb. 24, 2021, https://bit.ly/3kvXRuT
- “Biden Reopens Gateway for Green Cards, Reversing Trump COVID-19 Freeze,” National Public Radio, Feb. 24, 2021, https://www.npr.org/2021/02/24/971206197/biden-reopens-gateway-for-green-cards-work-visas-reversing-trump-covid-19-freeze
- “White House Lifts Trump Order That Temporarily Banned Certain Immigrant Visas During Pandemic,” CNN, Feb. 25, 2021, https://www.cnn.com/2021/02/24/politics/biden-immigration-coronavirus-pandemic/index.html
- “The Biden Administration Reversed a Policy That Used the Coronavirus Pandemic To Limit Immigration,” BuzzFeed, Feb. 24, 2021, https://www.buzzfeednews.com/article/hamedaleaziz/biden-green-card-policy-coronavirus
March Visa Bulletin Shows Big Leap Forward for Chinese and Indian EB-1s
The Department of State’s Visa Bulletin for March 2021 shows a seven-month leap forward for Chinese and Indian green card applicants in the employment-based first preference category, with a final action date of August 1, 2020, for both countries. In February, , immigrant visas were available for those with priority dates earlier than January 1, 2020.
The March bulletin also includes information on diversity category cut-offs for April and instructions on reporting address changes for overseas cases.
- Visa Bulletin for March 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-march-2021.html
USCIS Updates FAQ on H-1B Electronic Registration
U.S. Citizenship and Immigration Services updated its frequently asked questions (FAQ) on the H-1B registration process, which opens at noon ET on March 9, 2021, and runs through noon ET March 25, 2021. USCIS also announced that employers and their representatives can create H-1B Registrant Accounts beginning at noon ET on March 2, 2021.
- “H-1B Electronic Registration Process” (scroll down for FAQ dropdown), USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
USCIS Extends Flexibilities for Certain F-1 Foreign Students Applying for OPT
U.S. Citizenship and Immigration Services (USCIS) announced flexibilities for certain foreign students applying for Optional Practical Training (OPT) whose receipt notices for Form I-765, Application for Employment Authorization, are delayed. The flexibilities apply only to applications received on or after October 1, 2020, through May 1, 2021.
To allow F-1 students to complete their full periods of requested OPT (up to 12 months), the 14-month period within which they must complete OPT will start from the date of approval of the I-765 for applications for post-completion OPT. Beginning on February 26, 2021, USCIS is approving applications for post-completion OPT with validity dates reflecting the same amount of time as originally recommended by the designated school official on Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.
USCIS also said that F-1 students requesting post-completion OPT who receive I-765 approval for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the employment authorization document due to USCIS error.
USCIS is also accepting certain refiled I-765s for OPT and STEM (science, technology, engineering, and mathematics) OPT as filed on the original date until May 31, 2021.
- “USCIS Extends Flexibilities to Certain Applicants Filing Form I-765 for OPT,” USCIS, https://www.uscis.gov/news/alerts/uscis-extends-flexibilities-to-certain-applicants-filing-form-i-765-for-opt
Federal Judge Blocks Biden Administration’s 100-Day Pause on Removals
On February 23, 2021, a U.S. district judge in Texas blocked the Biden administration’s 100-day “pause” on certain removals announced in a memorandum on President Biden’s first day in office. The order applies nationwide but only to the 100-day pause, not to the entire memorandum.
“This preliminary injunction is granted on a nationwide basis and prohibits enforcement and implementation of the [100-day pause] in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum,” Judge Drew Tipton wrote. He said the Department of Homeland Security’s “core failure” was “its omission of a rational explanation grounded in the facts reviewed and the factors considered.” This “fatal” failure, Judge Tipton said, made the 100-day pause “arbitrary and capricious.”
- Texas v. United States, https://www.courtlistener.com/recap/gov.uscourts.txsd.1811836/gov.uscourts.txsd.1811836.85.0_2.pdf
- “Federal Judge Deals Biden Another Blow on 100-Day Deportation Ban,” Politico, Feb. 24, 2021, https://www.politico.com/news/2021/02/24/texas-judge-biden-deportation-ban-471315
- “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities,” Dept. of Homeland Security, Jan. 20, 2021, https://www.dhs.gov/sites/default/files/publications/21_0120_enforcement-memo_signed.pdf
USCIS Reverts to 2008 Version of Naturalization Civics Test
U.S. Citizenship and Immigration Services (USCIS) announced on February 22, 2021, that it is reverting to the 2008 version of the naturalization civics test beginning March 1, 2021. USCIS said it determined that the “development process, content, testing procedures, and implementation schedule” for the Trump-era revision implemented on December 1, 2020, “may inadvertently create potential barriers to the naturalization process.”
Those who filed naturalization applications on or after December 1, 2020, and before March 1, 2021, “likely have been studying for the 2020 test,” USCIS noted. The agency will offer such applicants the option to take either the 2020 or the 2008 civics test. There will be a transition period where both tests are offered. The 2020 test will be phased out on April 19, 2021, for initial test-takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test, USCIS said.
- “USCIS Reverts to the 2008 Version of the Naturalization Civics Test,” USCIS, Feb. 22, 2021, https://www.uscis.gov/news/news-releases/uscis-reverts-to-the-2008-version-of-the-naturalization-civics-test
H-2B Cap Reached for Second Half of FY 2021
U.S. Citizenship and Immigration Services (USCIS) has received enough petitions to meet the congressionally mandated H-2B cap for temporary nonagricultural workers for the second half of fiscal year (FY) 2021.
February 12, 2021, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2021. USCIS said it will reject new cap-subject H-2B petitions received after February 12 that request an employment start date before October 1.
USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:
- Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change their employers;
- Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
- Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.
- “H-2B Cap Reached for Second Half of FY 2021,” USCIS, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021
State Dept. Releases Update on Phased Resumption of Routine Visa Services
On February 24, 2021, the Department of State (DOS) released the latest update on phased resumption of routine visa services.
Among other things, the update notes that as a result of the pandemic, many visa applicants have paid the visa application processing fee but are still waiting to schedule a visa appointment. DOS said it is “working diligently to restore all routine visa operations as quickly and safely as possible.” In the meantime, DOS has extended the validity of machine-readable visa (MRV) fees until September 30, 2022, “to allow all applicants who were unable to schedule a visa appointment due to the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the fee they already paid.”
- “Phased Resumption of Routine Visa Services,” DOS, Feb. 24, 2021, https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html
DOL Announces 2021 Adverse Effect Wage Rates for Non-Range Occupations
On February 23, 2021, the Department of Labor (DOL)’s Employment and Training Administration announced the 2021 Adverse Effect Wage Rates for the employment of temporary or seasonal H-2A nonimmigrant foreign workers to perform agricultural labor or services other than the herding or production of livestock on the range.
The AEWRs are effective immediately, pursuant to a recent federal court order in United Farm Workers v. Dept’ of Labor.
- “Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations,” DOL notice, Federal Register, Feb. 23, 2021, https://www.govinfo.gov/content/pkg/FR-2021-02-23/pdf/2021-03752.pdf
Premium Processing Service Now Available to Australian E-3 Petitioners
Petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting a change or extension of status to E-3 classification now have the option to request premium processing service for their petition, U.S. Citizenship and Immigration Services (USCIS) announced. The
E-3 classification applies only to nationals of Australia coming to the United States to perform services in a specialty occupation.
USCIS said that an Australian national who is outside the United States may apply for an E-3 nonimmigrant visa directly through the Department of State or, in the case of an individual already in the United States, by filing Form I-129 with USCIS.
- “USCIS Expands Premium Processing Service to E-3 Petitioners,” USCIS, https://www.uscis.gov/news/alerts/uscis-expands-premium-processing-service-to-e-3-petitioners