USCIS Conducts Second Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations
In March 2021, USCIS conducted an initial random selection on properly submitted electronic registrations for the fiscal year (FY) 2022 H-1B cap, including for beneficiaries eligible for the advanced degree exemption. Per regulation, USCIS uses historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B cap for a given fiscal year. Only those petitioners with selected registrations for FY 2022 are eligible to file H-1B cap-subject petitions. The initial filing period for those with selected registrations for FY 2022 was from April 1, 2021, through June 30, 2021.
USCIS recently determined that it needed to select additional registrations to reach the FY 2022 numerical allocations. On July 28, USCIS selected previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on July 28 will begin on Aug. 2 and close on Nov. 3. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details of when and where to file.
An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved. Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still submit evidence and establish eligibility for petition approval based on existing statutory and regulatory requirements.
BREAKING NEWS: Applicants for Change of Status to F-1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’
U.S. Citizenship and Immigration Services today announced new policy guidance that eliminates the need for individuals who have applied for a change of status (COS) to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 COS application is pending.
Under the previous policy, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file extensions, or an initial COS and subsequent extensions ensuring that they would not have a “gap” in status.
To prevent a “gap” in status, USCIS will grant the change of status to F-1 effective the day we approve an applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status. If we approve an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time. An example of a violation would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.
The new policy will reduce workloads and costs for both the applicants and USCIS. USCIS is in the process of revising the Form I-539 instructions to reflect these changes.
Extension and Re-Designation of Yemen for TPS
On July 6, 2021, the Department of Homeland Security announced the extension and re-designation for Yemen for Temporary Protected Status (TPS) for 18 months, from Sept. 4, 2021, through March 3, 2023.
The extension of Yemen for TPS allows approximately 1,700 current beneficiaries to retain TPS through March 3, 2023, as long as they meet TPS eligibility requirements. The re-designation of TPS for Yemen allows an estimated 480 additional Yemeni nationals (or individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 5, 2021, and continuously physically present in the United States since Sept. 4, 2021, to file initial applications to obtain TPS, if they are otherwise eligible.
Yemen’s 18-month designation will go into effect on Sept. 4, 2021. A Federal Register notice explains the procedures necessary for an individual to re-register or submit an initial registration application under the designation and to apply for an Employment Authorization Document.
BREAKING NEWS: 9TH CIRCUIT FEDERAL COURT INVALIDATES ORDER INCREASING THE MINIMUM TEA INVESTMENT TO $900,000
On June 22, 2021, Judge Jacqueline Scott Corley of the U.S. District Court of the Northern District of California (the “Court”) issued an order granting summary judgment in Plaintiff’s favor in the matter of Behring Regional Center LLC V. Chad Wolf, et al.
In summary, Plaintiff sought both (1) a declaratory judgment that the Final EB-5 Rule (changing the minimum investment amount from $500,000.00 to $900,000.00 among other changes) which went into effect on November 21, 2019, is without force and effect, as well as (2) an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
The Court granted relief on the first item and issued remand with vacatur – essentially invalidating the Final EB-5 Rule. However, the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the Administrative Procedure Act’s (APA) rulemaking process. Therefore, the Court has set aside the Final EB-5 Rule and has remanded the matter back to the agency (Department of Homeland Security).
Although the Court did invalidate the Final EB-5 Rule, it is highly likely that Secretary Mayorkas will take action to reinstate the Final EB-5 Rule as the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
Trump Era Standards for Asylum Applications Has Been Reversed
This month, the Biden administration overturned two Trump-era policies that limited asylum eligibility for domestic violence survivors and others. US asylum law requires successful applicants to demonstrate that they are unable to return to their home countries due to a well-founded fear of persecution on account of their race, religion, nationality, political opinion, or their “membership in a particular social group.” Under the Trump administration, the Attorney General reinterpreted the definition of “particular social group” in a way that had made it harder for asylum-seekers fleeing violence by private actors, including domestic partners and gang members, to qualify for protection in the US. This welcome move by the Biden administration restores the “particular social group” definition and case law to what it had been before Trump took office. The change is expected to make it easier for individuals fleeing gang violence, domestic violence, and other sexual violence to successfully obtain asylum protections in the United States.
USCIS designates Haiti for Temporary Protected Status (TPS)
Secretary of Homeland Security Alejandro N. Mayorkas announced a new 18-month designation of Temporary Protected Status (TPS) for Haiti. The effective date will be the date of publication of an upcoming Federal Register notice (FRN). This new TPS designation will enable Haitian nationals (and individuals without nationality who last resided in Haiti) residing in the United States as of May 21, 2021, to file initial applications for TPS, so long as they meet eligibility requirements.
Venezuelans are Eligible to Apply for Temporary Protected Status (TPS)
On March 8, 2021, the Department of Homeland Security published a Federal Register notice announcing the designation of Venezuela for Temporary Protected Status (TPS) for 18 months effective March 9, 2021, through September 9, 2022.
The 180-day registration period for eligible individuals to submit TPS applications begins March 9, 2021 and will remain in effect through September 5, 2021. Applicant will receive an Employment Authorization Document valid until September 9, 2022.
Applicants will need to demonstrate:
• They are nationals of Venezuela or individuals having no nationality who last habitually resided in Venezuela;
• Continuous residence in the United States since March 8, 2021, and
• Good moral character
New Guidelines for I-765 Application for Employment Authorization for F-1 student visa holders
On February 26, 2021, USCIS announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after October 1, 2020, through May 1, 2021, inclusive.
USCIS has experienced delays at certain lockboxes in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students. These delays are a result of COVID-19 restrictions, a dramatic increase in filings of certain benefit requests, postal service volume and delays, and other external factors. While USCIS has made progress in addressing the problem, it is extending the following flexibilities to assist certain applicants for OPT impacted by the delays.
14-month OPT Period Flexibilities:
F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period. To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.
USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) from their school on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.
F-1 students requesting post-completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.
Refiling Following Rejection:
Applicants for OPT must file the Form I-765 during certain timeframes. However, USCIS recognizes that due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.
USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:
• The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and
• USCIS subsequently rejected it.
Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.
Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from the DSO, as long as they originally submitted an application for post-completion OPT within 30 days of the DSO’s recommendation or an application for STEM OPT within 60 days of the DSO’s recommendation as required by the regulations.
Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.
Missing or Deficient Signatures:
Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency.
President Biden Revokes Immigrant Visa Ban Effective Immediately
President Biden has revoked a Trump-era presidential proclamation that suspended the entry of certain immigrants until March 31. The revocation takes effect immediately and consulates are permitted to resume processing affected immigrant visa applications. However, due to reduced consular operations worldwide and increased demand, applicants are likely to see delays in appointment scheduling and adjudications for months to come. Further, many foreign nationals may need to qualify for exceptions to the regional COVID public health bans, which remain in place for travel from a number of countries.
The immigrant visa ban affected employment-based, family-based and Diversity Lottery immigrant visas, with limited exceptions for U.S. lawful permanent residents; spouses of U.S. citizens; children under 21 of U.S. citizens and prospective adoptees in the IR-4 or IH-4 visa classifications; foreign nationals seeking to enter on an immigrant visa as a healthcare professional, as well as their spouse and unmarried children under 21; applicants for EB-5 immigrant visas; and those whose entry would be in the U.S. national interest. Other than these categories, no immigrant visas were permitted to be issued under the ban.
Following President Biden’s revocation order, the State Department has issued guidance on how it will implement the rescission for applicants currently in the immigrant visa (IV) process and for those previously refused:
Not Yet Interviewed: IV applicants who have not yet been interviewed or scheduled for an interview will have their applications processed according to existing COVID-19 consular operations frameworks, which could mean reduced visa services and prioritization of visa case types, depending on the post. Applicants may experience delays for these reasons.
Previously Refused: IV applicants whose petitions remain valid and who were previously interviewed but refused visas due to the IV ban should wait for instructions from the U.S. embassy or consulate where they were interviewed. The Department of State has said it will reconsider these cases and will inform applicants if additional information is needed.
Diversity Visa (DV) 2020 Applicants: Those holding diversity visas issued in 2020 that are still valid may seek entry to the United States immediately, despite the IV ban visa annotation. Individuals whose DV-2020 visas have expired may not be issued replacement visas. However, those who received diversity visas as a result of orders in the court case Gomez v. Trump may travel to the United States on an expired visa in compliance with the court order. The State Department warns, though, that the court order could still be changed or modified and therefore, these beneficiaries are encouraged to travel as soon as possible.
Further, a national interest exception exists for DV applicants for the 2020 fiscal year who hold a valid immigrant visa and are subject to the regional COVID-19 public health bans.
Diversity Visa 2021 Applicants: DV applicants for the 2021 fiscal year (DV-2021) should wait to be notified of the scheduling of an interview in accordance with the phased resumption of visa services framework.
Nevertheless, regional COVID public health bans remain in place for foreign nationals physically present in Brazil, China, Iran, Ireland, the Schengen Area, South Africa or the United Kingdom within 14 days of attempting entry to the United States. Spouses and children of U.S. citizens and lawful permanent residents are exempt from the regional bans on the basis of their family relationship, so applicants in these categories will not be subject to a regional ban. Other immigrant visa applicants who do not qualify for a separate exception from the regional bans, however, will need to apply for a national interest exception from the consulate in order to be issued a visa.
President Biden has left in place the nonimmigrant proclamation suspending the entry of foreign nationals in the H-1B, H-2B, L-1, and certain J-1 categories, as well as related categories for dependents, with exceptions. This ban is scheduled to expire on March 31, 2021; it is not expected to be extended.
Though U.S. consulates are no longer prohibited from issuing immigrant visas based on classification alone, consular operations worldwide remain reduced due to COVID-19 public health measures. Pent up visa demand exists due to these measures as well as from IV applications delayed or prevented by the travel ban, making visa application backlogs likely to continue. In addition, COVID regional public health bans remain in place and if applicable, must be overcome in order for a U.S. consulate to issue a visa. Applicants who are no longer subject to the immigrant ban may see their cases move forward, but should expect delays as consulates continue to phase in routine services and work through backlogs. Those previously refused under the IV ban should await further instruction from the U.S. consulate that handled their application.
First Circuit Court holds Broad Warrantless Border Phone Search Policy is Lawful
The First Circuit Court, which regulates immigration law in Massachusetts and thus Boston Logan airport, held that searches of cellphones and other electronics devices at the US border (the airport is considered to be a border) do not require a warrant or probable cause and can be used to search for contraband. This means that a traveler does not have an expectation of privacy for the content of their electronic devices, and thus, any information found of the devices can be used against the person in possession of the device.