A reminder on international travel, we all want to be with our friends and family but travel has its challenges

Below are some important points to consider prior to traveling:

Country and Local Conditions: Check your destination’s local country requirements and airline’s requirements prior to travel. Also be mindful of the U.S. requirements for air travelers entering the U.S., including the CDC’s mandatory negative test prior to arrival, as well as any U.S. state quarantine requirement.https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html

Visa appointments: If you must travel and require a visa, visa appointments should be scheduled right away. If an earlier date is not available, an emergency appointment could be requested if there is an urgent reason. However, emergency appointments are highly discretionary and are increasingly being limited to residents applying for a visa in their home country. In addition, appointments may also be cancelled by the consulates with very little notice, which may leave the traveler stranded abroad until they are rescheduled. The consulate try to give 1-2 weeks notice but this has not consistently been the case under COVID.

National Interest Exception (NIE): If granted, an NIE is valid for 30 days from the date of issue for one entry into the United States. An approved NIE cannot be extended. If the traveler does not depart within the stipulated 30 days, a new request must be made. An NIE may only be requested once the traveler is outside of the United States. NIEs are discretionary. Most consulates processing times range anywhere from 20-90 days. We have seen increased delays that can result in extended time abroad while a decision is pending.

FY 2022 H-1B Cap Initial Registration Period Opens March 9, 2021

As previously communicated on our alerts, USCIS announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon EST on March 9th and run through noon EST on March 25th. During this period, prospective petitioners and representatives will be able to submit their registrations. Just like last year, a confirmation number will be assigned to each registration submitted for the FY 2022 H-1B cap. This number is used solely to track registrations. You cannot use this number to track your case status on USCIS’ online Case Status.

Prospective H-1B cap-subject petitioners or their representatives are required to use their myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a “registrant” account that will be available soon. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 9th to enter beneficiary information and submit the registraton. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session.

USCIS continues to state that:

  • If it receives enough registrations by March 25, it will randomly select registrations and send selection notifications via the users’ myUSCIS online accounts. USCIS intend to notify account holders by March 31.
  • An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.
  • Additional information, step-by-step registration instructions, and helpful videos are available on the H-1B Electronic Registration Process page.

In addition, USCIS has also announced that DHS is delaying the effective date of the H-1B Selection Process final rule until December 31, 2021. USCIS will apply the regulations currently in place (random selection) to the initial registration period, and any subsequent registration period, for the FY 2022 registration process that takes place before December 31, 2021.

DOL Proposes to Delay Effective Date of H-1B/PERM Wage Rule until May 2021

As stated in our earlier alert, the Department of Labor’s Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”

President Biden Issues Executive Order on Review of Trump Immigration Policies

On February 2, 2021, President Joseph Biden issued an executive order that instructs federal agencies to conduct a review of regulations, policies and guidance affecting legal immigration, including the public charge rule and naturalization process, among others. The order lauds the contributions of legal immigration and states that the federal government should develop welcoming immigration strategies that promote integration, inclusion and citizenship. Titled “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” the order was released along with two other immigration-related directives aimed at humanitarian immigration programs. President Biden did not revoke the H/L/J nonimmigrant ban or the immigrant visa ban, each of which is set to expire March 31, 2021.

The Departments of Homeland Security, State, and Justice must review any existing immigration regulations, policies and guidance that may be inconsistent with the Biden Administration’s priorities of promoting legal immigration and citizenship. Within 90 days, the agencies must report to the President on barriers that impede access to and adjudication of immigration benefits, and provide recommendations for removal of these barriers. The order identifies the currently enjoined Trump-era USCIS fee rule as an example of agency action that fails to promote access to the legal immigration system.

Review of public charge rule and its implementation

The public charge rule is subject to many lawsuits, the U.S. Supreme Court is currently considering whether to hear two separate challenges to the DHS rule. Although agencies must conduct an immediate review of their implementation of the public charge rule. DHS is currently implementing the rule, but the State Department is enjoined from doing so pursuant to a federal court injunction. To comply with President Biden’s executive order, agencies must report to the White House within 60 days on the following:

  • Effect of pubic charge implementation policies on the Administration’s principle of promoting and welcoming legal immigration;
  • Effect of current public charge policy on the immigration system and on public health; and
  • Recommendations on revising policies where lawful and appropriate, and communicating policies clearly to reduce fear and confusion.

Biden’s Executive Order did not change the current requirements to file a Form I-944, Declaration of Self-Sufficiency, with I-485 Adjustment of Status applications. Form I-944 is still required in all jurisdictions.

Promoting and Streamlining Naturalization

In addition, within 60 days of the executive order, agencies must develop plans to promote naturalization and to streamline the naturalization process to become a U.S. citizen. The plans must specifically address the following areas, among others:

  • Eliminate or reduce barriers in the naturalization process, including potential barriers in connection with the N-400 application, fingerprinting, background checks, interviews, and civics and language tests;
  • Substantially reduce N-400 processing times; and
  • Review whether it is appropriate to reduce the N-400 fee and restore the fee waiver process.

The order also creates an Interagency Working Group on Promoting Naturalization, chaired by DHS, and charged with developing a national strategy to promote naturalization.

We will continue to monitor and report in these very important areas.

President Biden Reinstates DED for Eligible Liberians

On January 20, 2021, President Biden issued a memorandum directing the Secretary of Homeland Security to reinstate Deferred Enforced Departure (DED) for eligible Liberians and to provide for continued work authorization through June 30, 2022.

Eligible Liberian nationals (and persons without nationality who last habitually resided in Liberia) covered under DED as of January 10, 2021, may remain in the United States through June 30, 2022. We will automatically extend employment authorization documents (EADs) with a March 30, 2020, or January 10, 2021, facial expiration date through June 30, 2022, for eligible individuals covered under DED for Liberians. A notice in the Federal Register has information on this automatic extension and instructions on how they can obtain new EADs.

White House Issues Executive Order on Enhancing Refugee Resettlement Programs and Planning for the Impact of Climate Change on Migration

On February 4, 2021, President Biden issued an Executive Order revoking certain past presidential actions on refugee admissions and resettlement, and directing government agencies to take steps to improve the “efficacy, integrity, security, and transparency” of the United States Refugee Admissions Program (USRAP); to create a plan to address USRAP processing backlogs; to complete a review of the Iraqi and Afghan Special Immigrant Visa programs; and to submit a report on climate change and its impact on migration, including forced migration, internal displacement, and planned relocation. (86 FR 8839, 2/9/21)