U.S. Department of Labor Announced Delay in Effective Date of Final Rule Affecting Wages for H-1B and PERM Workers
On February 1, 2021, in response to the regulatory freeze memo issued by the Biden Administration, the Department of Labor (DOL) issued a Federal Register notice. The informed the public that the Final Rule“ Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, would be delayed from March 15, 2021 to May 14, 2021. The notice also notified the public that the Department will solicit comment on the final rule for a period of 15 days. Comments must be received by February 16, 2021.
Biden Administration Withdrew USCIS Final Rule Strengthening H-1B Nonimmigrant Visa Classification Program
On January 20, 2021, Inauguration Day, White House Chief of Staff Ron A. Klain issued a memorandum for the executive department and agency heads instituting a regulatory freeze on rules pending review. The memorandum directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn. 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the memo’s date. As a result, the DHS Final Rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, which sought to amend the regulation to clarify how USCIS will determine “employer and employee relationship” between the Petitioner and the Beneficiary for the purpose of qualifying as “United States employer” will be withdrawn.
President Biden Issued Memorandum on Preserving and Fortifying DACA
Also on January 20, 2021, President Biden issued a memorandum directing the DHS Secretary, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) program.
President Biden Issued Proclamation Ending Muslim and Africa Travel Ban
On January 20, 2021, President Biden also issued a proclamation to end the discriminatory Muslim & Africa Travel Bans. The proclamation directed the Department of State (DOS) to direct embassies and consulates to resume visa processing in a manner consistent with the revocation of the executive order and proclamation specified inconsistent with the applicable law and visa processing procedure.
On January 22, 2021, DOS issued guidance on how it would address immigrant and nonimmigrant visa processing previously subject to the ban. According to the guidance, DOS will undertake a review to ensure that immigrant visa (IV) applicants denied on the basis of Proclamations 9645 or 9983 will have their cases reconsidered. The review will also consider reopening cases, whether additional fees are necessary, and develop a plan to expedite these cases. In addition, DOS mentioned the following:
- Under current regulations, applicants who were determined not to qualify for a waiver before January 20, 2020, must submit a new visa application (DS-260) and a new visa application processing fee. However, DOS appears to be reviewing this matter.
- No new application or new visa application fee is required for applicants whose eligibility for a waiver is still being assessed, or who did not qualify for a waiver within 1 year of January 20, 2021, and who request their local embassy/consulate to resume processing on their case within one year of January 20, 2021. They may be able to resume processing of their case without submitting a new application or fee.
- Immigrant Visa applicants who are still in the waiver process will be prioritized for adjudication by posts.
- Nonimmigrant visa (NIV) applicants who were denied pursuant to the travel bans or did not qualify for a waiver will need to submit a new visa application (DS-160) and pay a new visa application fee to reapply for a visa.
- DOS can immediately begin to process visa applications for all individuals from the affected countries. There is no provision to immediately schedule visa interviews for affected applicants. Due to the COVID-19 global pandemic, consular posts will occur on a post-by-post basis. Applicants should check consular post websites to determine if they meet expedited processing guidelines.
President Biden Issued Executive Order Promoting COVID-19 Safety in Domestic and International Travel
On January 21, 2021, President Biden issued an Executive Order Promoting COVID-19 Safety in Domestic and International Travel. It directs various government officials to access the CDC order of January 12, 2021. It also requires a negative COVID-19 test from all travelers entering the United States by air. In addition, they must take “further appropriate regulatory action, to the extent feasible and consistent with CDC guidelines and applicable law” to implement public health measures for international travel.
President Biden issued Proclamation the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Person Who Pose a Risk of Transmitting Coronavirus Diseases
On January 25, 2021, President Biden issued “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.” The Proclamation keeps the travel restrictions on immigrants and nonimmigrants from the Schengen Area, U.K., Ireland, and Brazil, which were scheduled to be lifted on January 26, 2021, via a January 18, 2021, Proclamation (10138) issued by the Trump administration. It was effective at 12:01 am (ET) on January 26, 2021, for these countries. In addition, restrictions implemented by the Trump Administration remained in effect for both China and Iran. This Proclamation also added South Africa to the list of countries with restrictions on entry into the U.S. The effective date of the suspension and limitation on entry from South Africa was 12:01 am (ET), January 30, 2021.
The Proclamation will remain in effect until it is terminated. The Secretary of Health and Human Services will provide a recommendation as to whether the Proclamation should be continued, modified, or terminated 30 days from issuance, and by the end of each month thereafter. The Proclamation also ordered the Secretary of Health and Human Services to provide a similar recommendation for the China and Iran suspensions within the same initial 30 day window, and by the end of each month thereafter.
Proposed H-4 EAD Recession Rule Withdrawn from Review
In response to the regulatory freeze memo issued by the Biden Administration, on January 25, 2021, the Trump Administration’s proposed regulation, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” (known as the “H-4 EAD Rescission Regulation”) was withdrawn from review at the Office of Information and Regulatory Affairs (OIRA), an office within the Office of Management and Budget (OMB) tasked with the review of Executive Branch regulations.
DHS Extended Flexibility in Requirements Related to Form I-9 Compliance
On January 27, 2021, U.S Immigration and Customs Enforcement (ICE) announced the continuous extension of the flexibilities in rule related to Form I-9 compliance that was granted earlier this year until March 31, 2021.
USCIS Extended Flexibility of Responding to Certain Agency Requests
On January 28, 2021, USCIS announced the continuous extension of the flexibility for responding to certain agency requests. The flexibilities applies to the listed requests, notices or decisions with the issuance date between March 1, 2020 and March 31, 2021.
Continued Receipt Notice Delays for Applications and Petitions filed with USCIS Lockbox
American Immigration Lawyer Associations (AILA) engaged with USCIS and provided the following updates regarding the USCIS Lockbox facilities on the status of receipt notices for the applications and petitions filed with USCIS Lockbox.
Dallas Lockbox: The Dallas Lockbox facility currently intakes Employment Based I-485 Adjustment of Status applications and stand-alone cases filed around October 29, 2020 and October 30, 2020. 415,000 applications/petitions in the processing queue awaiting to be receipted.
Phoenix Lockbox: The Phoenix Lockbox facility currently intakes cases of all form types filed in early December 2020. 67,000 envelopes (constituting about 100,000 applications) in the processing queue awaiting to be receipted. Case types include DACA, N-400, I-90, H-4 I-765, I-751 (including employment based)
Chicago Lockbox: The Chicago Lockbox facility is the only lockbox that is current in terms of intaking cases. Receipting cases within about a week of delivery date.
February 2021 Visa Bulletin
DOS released its Visa Bulletin for February 2021. The final action cutoff dates for issuance of an immigrant visa will be as follows:
- EB-1: All countries except for China and India will remain current in February. China and India will advance four months to January 1, 2020.
- EB-2: China will only advance by just 14 days and India will only advance 4 days. All other countries remain current.
- EB-3: China will advance less than a month and India will advance for 10 days. All other countries remain current.
In addition to final action dates and dates for filing for family and employment-based petitions, it contains:
- Notes on the diversity visa (DV) category
- DV category rank cutoffs that will apply in March
- Visa availability in the coming month
- An annual report of immigrant visa applicants in the family-sponsored
- Employment-based preferences registered at the National Visa Center as of November 1, 2020
USCIS determined that for adjustment of status filing for February, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference categories must use the Dates for Filing chart. Applicants in all employment-based preference categories must use the Final Action Dates chart.