Biden Administration to Allow Work-Visa Ban to Expire – WSJ

The Biden Administration will not renew the Trump Administration’s pandemic-related work visa ban, which expired on Wednesday, March 31, 2021. This ban impacted applicants for H-1B, H-2B, L-1, and J-1 visas, as well as dependent spouses and children. Despite the expiration of the visa ban itself, COVID-19 related backlogs and understaffing at U.S. consulates and embassies will still cause delays in scheduling appointments and processing applications. Additionally, pandemic-related regional travel bans are still in place for the UK, Ireland, Schengen nations, China, South Africa and Brazil.

DOS Updates on Public Charge guidance for consular officers

Since the 2019 public charge rule has been vacated, the Department of Homeland Security (DHS) has updated its guidance to consular officers on how to proceed in the meantime.  According to this new guidance, consular officers are to apply the pre-2019 public charge standard when adjudicating applications.  This is consistent with President Biden’s Executive Order (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans), which includes requiring that DHS and USCIS immediately review all actions related to the implementation of the public charge ground of inadmissibility.  If the reviews performed pursuant to this Executive Order result in further policy changes, USCIS and DHS will issue additional guidance updates.

DHS has reinstated Form I-864W, Request for Exemption for Intending Immigrant's Affidavit of Support, which allows certain applicants to seek an exemption from the affidavit of support requirement, including the following applicants:

(1)    individuals who have earned or can receive credit for 40 quarters of coverage under the Social Security Act (SSA),

(2)    children who will become U.S. citizens upon entry to the United States,

(3)    self-petitioning widow(er)s, and

(4)    self-petitioning battered spouses and children. 

These applicants will be required to submit Form I-864W if seeking an exemption from the affidavit of support requirement.  Applicants who request this exemption should include Form I-864W with other supporting documents as part of the immigrant visa application or bring the form to the visa interview appointment with the consular officer.  DHS has announced that applicants “are not required to complete, nor should they present, the DS-5540, Public Charge Questionnaire”.

USCIS extends flexibilities for response due dates

USCIS has announced that is extending the flexibilities it announced on March 30, 2020, extending due dates for the following agency requests:

• Requests for Evidence;

• Continuations to Request Evidence (N-14);

• Notices of Intent to Deny;

• Notices of Intent to Revoke;

• Notices of Intent to Rescind;

• Notices of Intent to Terminate regional centers; and

• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

USCIS will also 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:

• The form was filed up to 60 calendar days from the issuance of a USCIS decision; and

• The decision was issued anytime from March 1, 2020, through June 30, 2021. 

This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1, 2020, and June 30, 2021.   

USCIS 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.  USCIS will also 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.

Class Action Filed for H-4 and L-2 Applicants with Delayed Employment Authorization Applications

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) on behalf of L-2 and H-4 applicants who have faced long application processing times that have caused gaps in employment authorization. The lawsuit alleges that the delay is the intentional result of a new biometrics requirement (implemented in March 2019) for L-2 and H-4 applicants seeking to change or extend their status with form I-539. The complaint claims that plaintiffs have had to wait up to two years for their cases to be adjudicated, while applications submitted before the new biometrics requirement was implemented were processed within 180 days. The plaintiffs named in this lawsuit report being unable to work and in some cases being unable to renew their drivers’ licenses since they were unable to provide proof of lawful status. The lawsuit “urges” DHS and USCIS to process these applications without the new biometrics requirement, and to approve work authorization while the applications are being processed to prevent gaps in employment for the applicants. USCIS has responded and has alleged that new biometrics appointments are necessary to verify the identity of the applicant for the purpose of completing background checks.

USCIS Begins Sending Invites to Certain Applicants to Resubmit I-485 Applications That Were Previously Rejected

On March 31, 2021, the American Immigration Lawyers’ Association (AILA) released a practice alert noting that some Adjustment of Status applicants whose initial applications had been rejected had received invitations from USCIS to resubmit their applications based on meeting the following criteria:

• The applicant is seeking adjustment of status in the EB-1, EB-2, or EB-3 immigrant categories;

• The applicant’s adjustment application arrived at a USCIS lockbox between October 1 and December 31, 2020 on a date when an immigrant visa was immediately available to the applicant based on the then-current Visa Bulletin and USCIS policy;

• USCIS rejected the application solely based on a lack of response, or multiple responses, to Part 2, Item Numbers 9.a., 9.c. or 10 on the adjustment application; and

• An immigrant visa is no longer immediately available due to changes in the Visa Bulletin and USCIS policy. 

AILA advises adjustment of status applicants who meet the above criteria to be aware that they may receive an invitation to resubmit their application. 

Visa Bulletin Updates

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.  In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.

For March 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].

In April, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140.  Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in April.

The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts. 

The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.  

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com). 

Rescission of the 2017 Computer Programmer Memorandum

On February 3, 2021, USCIS issued a new Policy Memorandum, issued based on the ruling by the Ninth Circuit in Innova Solutions v. Baran, that rescinds the 2017 Trump-era Computer Programmer Policy Memorandum. The 2017 Policy Memo rescinded the previous USCIS policy and disqualified the Computer Programmers occupation as a specialty occupation. The Trump-era memo’s policy resulted in a significant increase in RFEs and denials in H-1B cases. 

In December 2020, the Ninth Circuit issued a decision in Innova Solutions v. Baran, finding that USCIS’s denial of an H-1B petition that held that Computer Programmers was arbitrary. USCIS argued that the occupation of Computer Programmer did not qualify as a specialty occupation because the Occupational Outlook Handbook, a Department of Labor publication, noted that some are hired with only an associate’s degree.  The court found that USCIS overlooked relevant language in the OOH that states that computer programmers are normally required to have a bachelor’s degree, which is the dispositive relevant factor under the statute and regulations that should have been considered.  As a result, USCIS rescinded the 2017 Trump-era Memorandum to ensure consistent adjudications. USCIS has stated that further guidance is forthcoming.

USCIS Expands Premium Processing for E-3 Petitions

USCIS announced on Feb. 24, 2021 that petitioners filing a request for a change or extension of status to E-3 classification will now have the option to request premium processing service. The E-3 classification applies only to nationals of Australia who are coming to the United States solely to perform services in a specialty occupation.

An Australian national who is outside the United States may apply for an E-3 nonimmigrant visa directly through the Department of State.  For Australians already in the U.S., a Employer may file a Form I-129 with USCIS and request change of status, or if the Australian is already in E-3 status, a change of employer. To qualify for the E-3 classification, the Australian citizen must have a legitimate offer of employment in a specialty occupation and possess the necessary academic or other qualifying credentials, among other things. USCIS’s premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days.

E-Verify Updates the SSA TNC Process

On March 4, 2021, E-Verify updated the Social Security Administration (SSA) Tentative Nonconfirmation (TNC) process. Employees who receive an SSA TNC with a citizenship mismatch have the option to call DHS to resolve their cases instead of visiting an SSA field office.

E-Verify revised the SSA and Dual TNC Further Action Notices to include guidance informing employees that they may contact DHS to resolve their SSA TNC due to a citizenship mismatch. If DHS is able to resolve the TNC, employees will not need to visit an SSA field office.

These updates apply to cases created on the E-Verify website and in web services.

USCIS May Re-Open H-1B Petitions Denied Under Three Rescinded Policy Memos

On March 12, 2021, USCIS announced it may reopen and/or reconsider H-1B petitions denied based on three rescinded policy memos. USCIS will use its discretion to accept motions to reopen that are filed more than 30 days after the denial, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and if the denial was based on policies in the following rescinded H-1B memoranda:

• HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and

• PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.

• PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

A petitioner may request that USCIS reopen and/or reconsider H-1B petitions that received adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. USCIS also has discretion to accept and consider untimely motions under certain circumstances, as allowed by regulation and form instructions.

Petitioners who received a denial for an H-1B petition based on the above listed rescinded policy memoranda should consider whether they have sufficient time in the validity period requested on the previously filed H-1B petition and labor condition application. Additionally, USCIS recently extended COVID-19 related accommodations that affect the deadlines for filing motions and appeals through March 31, 2021.