Federal Register Notice Published Designating Burma/Myanmar for Temporary Protected Status

The notice designating Burma/Myanmar for Temporary Protected Status (TPS) was published in the federal register. This notice designates Burma/Myanmar for TPS for 18 months, from May 25, 2021, to November 25, 2022. This designation allows eligible nationals from Burma/Myanmar who have continuously resided in the U.S. since March 11, 2021, and who have been continuously physically present in the U.S. since May 25, 2021, to apply for TPS. This will provide protection from deportation along with the opportunity to apply for work authorization during those 18 months. For those individuals who were or are also in F-1 status, there has been a suspension of certain regulations related to limitations on the number of hours students from Burma/Myanmar may work during this same time period. (Please see previous update regarding the suspension of certain requirements for F-1 students from Burma/Myanmar.)

For more information, please see the USCIS webpage dedicated to Burmese TPS: https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-burma-myanmar. If you have additional questions about applying for TPS, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.

Suspension of Requirements Governing Employment for F-1 Students from Burma/Myanmar

Due to the humanitarian crisis in Burma/Myanmar, the Secretary of Homeland Security has suspended certain regulatory requirements for F-1 nonimmigrant students from Burma/Myanmar who are experiencing severe economic hardship. These students may request work authorization, work additional hours while school is in session, and reduce their course load. This change in policy became effective on May 25, 2021, and will remain in effect until November 25, 2022, which coincides with the period of time for which Burma/Myanmar has been designated for Temporary Protected Status (TPS) (see update on TPS). Please see this notice from DHS for more information: https://studyinthestates.dhs.gov/2021/05/dhs-issues-special-student-relief-for-f-1-international-students-from-burma.

National Interest Exception for F, M, and certain J visa holders for the coming school year

As noted in a previous segment of our newsletter, on May 27, 2021, the US Department of State announced a new national interest determination made by the Secretary of State. Students and certain academics subject to Presidential Proclamations 9984, 9992, and 10143 (related to the spread of COVID-19) who have been present in China, Iran, Brazil, South Africa, or India, may now qualify for a National Interest Exception (“NIE”). They will only for an NIE if their academic program begins August 1, 2021 or later. Derivative family members accompanying a noncitizen who has been granted or would be reasonably expected to receive an NIE, and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more, also qualify for an exception. 

Students with valid F-1 and M-1 visas who plan to begin or continue an academic program, including optional practical training (“OPT”), starting August 1, 2021 or later do not need to contact an embassy or consulate to travel. They may enter the United States no earlier than 30 days before the start of their academic program. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel. 

(Link to DOS announcement: https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-for-certain-travelers-from-china-Iran-india-brazil-south-africa-schengen-area-united-kingdom-and-ireland.html) 

DOL Further Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels

As noted by NAFSA, on January 14, 2021, the Department of Labor (“DOL”) under the Trump administration published the final rule “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” This was a response to federal courts having set aside the October 8, 2020 interim final rule with the same name.  

This final rule will change how DOL computes Level I through Level IV wage rates when it uses Occupational Employment and Wage Statistics (OEWS) wage date to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify an LCA that relies on OES wage data. This would raise the prevailing wage determinations in each OEWS-based wage level. 

The implementation of this rule was delayed on March 12, 2021, and has recently been delayed again. On May 12, 2021, DOL published a final rule stating that the effective date would be further delayed until November 14, 2022, and the corresponding phased transitions dates have been delayed until January 1, 2023, January 1, 2023, January 1, 2025, and January 1, 2026, respectively. 

(Link to Department of Labor final rule: https://www.aila.org/infonet/dol-further-delay-of-effective-date-of-final-rule) 

Final Rule Implementing Vacatur of Interim Final Rule Which Revised Definition of Specialty Occupation

In good news for high-skilled foreign workers who would like to apply for H-1B visas in the future, a final rule was published on May 19, 2021, removing the interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program” after it had been vacated by a federal district court.  

This interim final rule was issued under the Trump administration without a notice and comment period and would have had an incredibly negative impact on the H-1B process. Specifically, this rule would have overhauled the H-1B visa program by requiring employers to pay H-1B workers much higher wages, tightening the restrictions on the types of degrees that could qualify an applicant, and shortening the length of the visa for certain types of workers. According to a senior official in the Department of Homeland Security (“DHS”) at the time, this change would have meant the rejection of about one-third of H-1B applications. 

However, on December 1, 2020, in Chamber of Commerce, et al., v. DHS et al., the US District Court for the Northern District of California court found that the defendants had failed to show that there was good cause to avoid the Administrative Procedure’s Act’s notice and comment requirements. Consequently, the court set aside the DHS interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program.” Based on this ruling, the Biden administration recently published a final rule restoring the regulatory text relating to the definition of a H-1B visas to appear as it did before the publication of the interim final rule. 

International Entrepreneur Parole

For many years, entrepreneurs have had to try to piece together pathways within the US immigration system to support them and the companies they have been trying to build. However, it has been difficult because there hasn’t been an obvious solution for these individuals.  

In an effort to begin to rectify this situation, the Obama administration issued a regulation establishing the International Entrepreneur Rule towards the end of the former President’s time in office. Unfortunately, under the Trump administration this rule came under attack. The rule’s implementation was delayed, there were lawsuits challenging this delay that ultimately overcame it, but then the Trump administration issued a proposed regulation to eliminate the program. 

After these many twists and turns, there is finally good news for startup founders. On May 10, 2021, the Biden administration announced that it is reviving the rule. They have withdrawn the Trump administration’s proposed rescission of the International Entrepreneur Rule and are welcoming applications for the program. This is good news for innovators, makers and founders, and very good news for the US economy, as well. 

For more information, please visit the USCIS website about the program: https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole. If you are an entrepreneur and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C.  (info@iandoli.com) to schedule a consultation.  

USCIS Issues Policy Guidance Extending EAD Validity for Certain Adjustment of Status Applicants from 1 Year to 2 Years

On June 9, 2021, USCIS issued a policy alert increasing the validity period of initial and renewal Employment Authorization Documents (“EADs”) for certain adjustment of status applicants from one year to two years. As the average processing time for adjustment of status applications is close to or greater than one year at the moment, this will be helpful to many individuals with pending adjustment applications.  

Please note that this change does not affect replacement EADs. Replacement EADs will be issued with same validity dates as appeared on the originally issued document.  

This policy guidance is effective immediately. 

(Link to USCIS policy memo: https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf) 

SCOTUS Holds Grant of Temporary Protected Status Does Not Constitute an Admission for the Purposes of Adjustment of Status

On June 7, 2021, the Supreme Court of the United States (SCOTUS) issued a unanimous ruling in Sanchez v. Mayorkas deciding a circuit split regarding whether or not a grant of Temporary Protected Status (TPS) constitutes a lawful admission into the US for the purposes of adjustment of status. They have held that it does not. This decision is a disappointment to thousands of individuals who have been beneficiaries of TPS - people who fled natural disasters or armed conflict in their home countries and have since lived in, worked in, and contributed to this country for years. Had the court ruled in the opposite manner, this would have provided a smoother pathway to obtaining a green card as it would have removed one large barrier in the process. Though there are still other ways to become a permanent resident if a person has TPS, many of these individuals will not be able to do so because they “entered without inspection” and were not “inspected and admitted” by an immigration officer when they first entered the US. 

If you are a TPS holder and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C.  (info@iandoli.com) to schedule a consultation.  

ICE Extends I-9 Compliance Flexibility

On May 26, 2021, US Immigration and Customs Enforcement (“ICE”) announced that due to continued precautions related to the pandemic, the US Department of Homeland Security (“DHS”) would extend the policy of flexibility related to Form I-9 compliance that began in March 2020. The policy has been further extended from June 1, 2021, until August 31, 2021. 

This extension has guidance for employees hired on or after June 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. 

(Link to USCIS announcement: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/temporary-policies-related-to-covid-19) 

(Link to ICE announcement: https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-0) 

USCIS Suspends Biometrics Requirement for Certain I-539 Applicants

In a declaration that was submitted by Acting Associate Director of Service Center Operations Connie Nolan in the Edakunni v. Mayorkas litigation (a class-action lawsuit filed by AILA and Wasden Banias to challenging H-4 and L-2 adjudication delays), USCIS stated that beginning on May 17, 2021, it would be implementing a new policy suspending the biometrics requirements for H-4, L-2, and E-1, E-2, and E-3 nonimmigrants.  

This new policy applies to the previously mentioned nonimmigrant categories if their Form I-539 was pending on May 17, 2021, and they haven’t received a biometrics notice yet, and 2) to any new I-539 applications received by USCIS between May 17, 2021 and May 23, 2022. This policy will be in place for 2 years and should automatically expire after May 17, 2023, but may be extended or revoked by the USCIS Director. Applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. However, USCIS will not refund any biometrics payments already made. 

(Credit to: Practice Alert: USCIS to Suspend Biometrics Requirement for Certain I-539 Applicants Beginning May 17, 2021)