DHS Postpones REAL ID Deadline to May 2023

Secretary of Homeland Security Alejandro Mayorkas announced that the Department of Homeland Security is extending REAL ID requirements to May 3, 2023 as a result of the COVID-19 pandemic. The REAL ID Act establishes minimum security standards for license issuance and prohibits federal agencies from accepting state-issued driver’s licenses and identification cards that do not meet the Act’s minimum standards. The purposes covered by the Act include accessing federal buildings and boarding federally regulated commercial aircraft. 

Beginning May 3, 2023, every air traveler 18 years of age and older will need a REAL ID-compliant driver’s license or identification card to board a domestic commercial flight. Other TSA-compliant identification documents such as an active passport will still be acceptable. 

USCIS Reinstates Policy Instructing Officers to give Deference to Prior Determinations in Extension Requests

On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance instructing officers to give deference to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts. Deference to prior determinations will not apply where there is a material error or material change in circumstances or eligibility. This guidance affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies. 

This guidance largely restores USCIS’s 2004 deference policy, which was rescinded in 2017. This policy directed officers to defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application.  

Affording deference to prior approvals involving the same parties promotes effective and fair adjudication of immigration benefits in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. 

USCIS to Suspend Biometrics Requirement for Certain I-539 Applicants Beginning May 17, 2021

It is being reported that due to ongoing litigation (Edakunni et al v. Mayorkas, 2:21-cv-00393-RAJ (W.D. Wash.)) U.S. Citizenship and Immigration Services (USCIS) will be suspending biometrics on some EAD applications for the next 2 years …. We are waiting for a formal announcement from USCIS and will keep you posted as developments occur and how this affects any cases in process and to be filed.   

Biden Administration Bans Most Travel from India to Limit the Spread of COVID-19

On April 30, 2021, President Biden issued an Executive Order banning the entry of nonimmigrants and non-U.S. citizens who were physically present in India during the 14-day period preceding their entry or attempted entry into the United States. This proclamation is effective May 4, 2021 and will remain in effect until it is terminated by the President. This proclamation does not apply to: 

o   U.S. citizens or lawful permanent residents  

o   Noncitizen nationals of the U.S.  

o   Noncitizen spouses of U.S. citizens  

o   Noncitizen parents or legal guardians of an unmarried U.S. citizen or lawful permanent resident under the age of 21 

o   Noncitizen sibling of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is under the age of 21. 

o   Any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Homeland Security, or their designees. 

o   For a full list of exceptions, please refer to the Executive Order. 

Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about India-related travel. 

IDC News

Announcement - Iandoli Desai & Cronin P.C.  is very pleased to announce that Mary E. Walsh has become a Shareholder. Mary will continue to represent immigrant families as well as colleges, universities, medical facilities, other businesses and their international employees and families. Mary has practiced U.S. immigration law for 14 years and is currently the co-chair of the BBA’s Immigration Committee. 

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 April 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 may file an application 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.  

The Visa Bulletin for May 2021 has not yet been released. 

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).

DHS announces continued flexibility in requirements related to Form I-9 compliance

On April 1, 2021, the Department of Homeland Security (DHS) announced an extension to the agency’s March 20, 2020 announcement regarding flexibilities in I-9 form completion while employees are operating with COVID-19 precautions in place. These flexibilities, which were set to expire on March 31, 2021, have now been extended through May 30, 2021.  According to these announcements, employees are currently only required to physically inspect Form I-9 identity and employment verification documents in person for employees who are working on site on a “…regular, consistent, or predicable basis.”  Employees who are working completely remotely due to COVID-19 policies are temporarily exempt from the physical inspection requirements for their I-9 forms under 274A of the INA until they return to working on-site “on a regular, consistent, or predictable basis”, or the DHS flexibilities are terminated, whichever comes first.   

Employers may perform in-person inspection of employees’ I-9 documents, “in their discretion” for employees hired on or after DHS’s March 20, 2020 announcement and provided their identification documents “for remote inspection” based on the March 20, 2020 announcement’s guidance.  

Further guidance from DHS regarding the completion of I-9 Forms and these flexibilities will be announced as DHS and other agencies monitor the ongoing national emergency.   

H-1B Initial Electronic Registration Selection Process Completed

USCIS has announced that the initial H-1B Electronic Registration selection process for FY 2022 Cap Season has been completed.  This includes both the H-1B Cap and Master’s Cap. 

Those who registered for the selection process will now see one of the following statuses for their registration on their online USCIS accounts for each beneficiary registered:

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

Those with a selected registration may file their H-1B petitions with USCIS starting April 1, 2021.   Per USCIS’s announcement, only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.  The period for filing these H-1B petitions will be at least 90 days.  A printed copy of the selection notice must be submitted with the petition. 

Cap-subject H-1B petitions must still establish the petitioner’s and beneficiary’s eligibility for the H-1B visa category at the time the petition is filed and the evidence required by the applicable regulations must still be submitted.

If you registered for the H-1B Electronic Selection Process yourself and would like assistance with the petition now that you have been selected, please contact Iandoli Desai & Cronin (info@iandoli.com) for assistance preparing the H-1B by June 30, 2021.

Student and Exchange Visitor Program (SEVP) reports a 72% drop in new international student enrolment in 2020

The Student and Exchange Visitor Program (SEVP) has released their annual report for 2020, which discusses how the international student population in the United States has decreased amidst the ongoing COVID-19 Pandemic.  The report highlights data from the web-based Student and Exchange Visitor Information System (SEVIS), and notes that the number of active records in SEVIS for F-1 and M-1 students decreased by 17.86% between 2019 and 2020.  New international student enrolment decreased by 72% between 2019 and 2020.  While August and September are typically the months that report the highest international student enrolment, a 91% decrease in new F-1 student enrolment was reported in August 2020, and a 72% decrease in new M-1 students was reported.  There was also a 12% decrease in students who applied for Employment Authorization to work during their OPT (Optional Practical Training) program. 

The full “SEVIS by the numbers” report can be viewed here.

DOS Provides Update on the Phased Resumption of Routine Visa Services

On April 6th, the Department of State provided the following update on the phased resumption of visa services: 

• The combined impact of local, national, and international COVID-19 related work and travel restrictions has resulted in a continuing backlog at all embassies and consulates abroad. DOS is working to reduce this backlog while ensuring the safety of staff and applicants.

• DOS is prioritizing services provided to U.S. citizens abroad. Immigrant and finance visas, as well as visas for immediate relatives of U.S. citizens and other family-sponsored cases are also being given high priority.

• Embassies and consulates that provide nonimmigrant visa services are prioritizing “travelers with urgent needs, foreign diplomats, mission-critical categories of travelers (such as those coming to assist with the U.S. response to the COVID-19 pandemic, and workers who are essential to the American food supply), followed by students, exchange visitors, and some temporary employment visas.”

DOS will continue to provide updates on this situation as they become available.