President Signs Executive Order Extending Suspension of Entry of Certain Immigrant and Nonimmigrants until March 31, 2021
On New Year’s Eve, President Donald Trump issued a
proclamation extending the duration of two proclamations that suspended the entry of certain foreign nationals on immigrant and nonimmigrant work visas until March 31, 2021 citing continued weakness in the U.S. labor market due to the coronavirus pandemic. Under the extension, the government will continue to restrict the entry of most immigrant visa applicants currently outside of the U.S. The government will also continue to restrict the entry of most new nonimmigrant visa holders under the H-1B, L-1, H-2B and J-1 visa categories.
President Trump previously signed
Proclamation 10014 on April 22, 2020 which restricted the issuance of immigrant visas abroad to people coming to the U.S. to work or reunite with families for 60 days. On June 22, 2020, Trump signed Proclamation 10052 which restricted the issuance of certain nonimmigrant visas and extended the ban on issuance of immigrant visas until December 31, 2020. The U.S. District Court for the Northern District of California later enjoined the implementation of Proclamation 10052 for employers who are members of the Chamber of Commerce, the National Association of Manufacturers, and the other plaintiff associations.
The proclamation could be rescinded by the incoming Biden administration after it takes office on January 20th although the administration has made no comment on whether it would be immediately reversed.
For a more detailed analysis of who is affected and exempt from the ban, please see our prior immigration alert.
USCIS Update Regarding Delays in Receipt Notices for Applications filed with USCIS Lockbox Facilities
Due to a significant increase in filings as well as reduced capacity of the lockbox workforce facilitated to protect the health and safety of its employees during the COVID-19 pandemic, USCIS has reported significant delays in processing receipt notices for applications filed with USCIS Lockbox facilities.
USCIS has issued the following guidelines to minimize the time necessary to process and send out receipt notices as well as receive updates regarding the status of your case:
File Online: Utilize this option when available for your form type to receive an immediate electronic confirmation from USCIS upon receipt of the application
Create a free : Creating an account will enable you to check the status of your case anytime and anywhere using the USCIS USCIS online account case status online tool
Utilize Form G-1145, E-Notification of Application/Petition Acceptance: Attach this form to the application to receive a text message and/or email when USCIS accepts your form.
USCIS has also issued guidance to follow when submitting evidence with the application package:
Review the form instructions and checklist of required initial evidence on the form webpage (if this option is available for your form);
Submit single-sided photocopies of requested documents, unless the form instructions specifically asks you to submit an original document;
With the exception of passport photos, please copy photographs to an 8.5”x11” sheet of paper instead of sending originals. Always send in original passport photos where requested;
Submit only the required evidence and supporting documentation listed in the form instructions; and
If the required primary evidence is unavailable when filing a form, review the form instructions for appropriate secondary evidence.
Consolidated Appropriations Act, 2021 [Public Law No: 116-159] extends Various Immigration Programs
On December 21, 2020, Congress passed the
Consolidated Appropriations Act, 2021 to fund federal agencies through September 30, 2021 as well as provide much needed COVID-19 relief including the expansion of eligibility for Paycheck Protection Program (PPP) and the Employee Retention Tax Credit. Along with funding federal agencies, the bill extended the following immigration programs:
EB-5 Regional Center Program, where foreign nationals could invest indirectly via an EB-5 Regional Center to obtain U.S. permanent residency, was extended until June 30, 2021.
E-Verify Program was extended until September 30, 2021. E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States.
Non-Minister Special Immigrant Religious Workers Program was extended until September 30, 2021. Non-minister special immigrant religious workers include people within a religious vocation or occupation who work in a professional or nonprofessional capacity. This program end date also applies to accompanying spouses and children of these non-minister special immigrant religious workers.
Conrad-30 has been extended until September 30, 2021. The Conrad 30 waiver program allows J-1 foreign medical graduates (FMGs) to apply for a waiver of the 2-year foreign residence requirement upon completion of the J-1 exchange visitor program.
Liberian Refugee Immigration Fairness Program (LRIF) was extended until December 20, 2021. Enacted on Dec. 20, 2019 LRIF provides an opportunity for certain Liberian nationals and their spouses, unmarried children under 21 years old, and unmarried sons and daughters 21 years old or older living in the United States who meet the eligibility requirements to obtain lawful permanent resident status.
In addition to the above, the Bill grants the Secretary of Homeland Security the authority to issue additional H-2B visas beyond the statutory limit of 66,000.
Update on H-2B Applications filed in 2021 peak filing season
The DOL Office of Foreign Labor Certification (OFLC) opened the filing window for H-2B submissions requesting a start date of April 1, 2021 or later on January 1, 2021 at 12:00 am ET. Applications were accepted during a three day filing window (January 1-3, 2021) in the Foreign Labor Application Gateway System (FLAG). During this filing period, employers submitted 5,403 applications in the FLAG system requesting more than 96,888 worker positions. OFLC will now select applications for processing using the
randomization procedure established in the Federal Register.
U.S. businesses use the
H-2B program to employ foreign workers for temporary nonagricultural jobs. Congress has set the H-2B cap at 66,000 per fiscal year although the recently passed Consolidated Appropriations Act, 2021 authorizes the Secretary of Homeland Security to issue additional H-2B visas beyond this statutory limit.
The Department of State Extends Its Policy to Expand Interview Waiver Eligibility
The Department of State has extended a
temporary provision that allows applicants whose nonimmigrant visas expired within 24 months and are applying to renew their visa in the same classification to be eligible for a waiver of the in-person interview requirement until March 31, 2021.
To qualify for an in-person interview waiver, the applicant must be applying to renew his or her visa no more than twenty-four months after the previous visa’s expiration in the same nonimmigrant visa classification. For further information on eligibility and instructions on the application procedure without an interview, applicants must review the website of the U.S. Consulate they wish to attend.
EOIR Updates Practice Manual; Changes Filing Deadlines for Non-Detained Cases
On December 23, 2020, The Office of the Chief Immigration Judge (OCIJ) updated its
Immigration Practice Manual, a comprehensive guide on uniform procedures, recommendations, and requirements for practice before Immigration Courts.
One update that stood out among others, was the change made to the filing deadlines for non-detained cases from 15 days to 30 days prior to the hearing. This filing deadline applies to individual calendar hearings involving non-detained aliens, both unrepresented and represented by counsel. For these cases, filings must be submitted at least thirty days in advance of the hearing. This provision does not apply to exhibits of witnesses offered to rebut and/or impeach.
Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Delays
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) has extended its flexibility in compliance with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19 until January 31, 2021. USCIS had
previously issued guidance indicating that Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization is acceptable for Form I-9 Employment Eligibility Verification.
In addition, temporary provisions deferring the requirement to physically inspect the original documents presented by new hires during the I-9 process during the COVID-19 emergency for workplaces operating remotely was also extended until January 31, 2021. This provision was set to expire December 31, 2020. According to the originally issued guidance, employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect Section 2 documents remotely (by video, fax or email) and obtain, inspect and retain copies of these documents within three business days for purposes of completing Section 2. Section 1 of the I-9 must be completed by the employee’s start date and Section 2 must be completed within 3 business days of the start date.
This provision only applies to employers and workplaces operating remotely and the guidelines are not mandatory.
January Visa Bulletin: Slight Advancement in India EB-1, EB-2 and EB-3 categories
The U.S. Department of State (DOS) has released the January Visa Bulletin. Priority-date cutoffs have advanced slightly in some employment-based categories.
USCIS has announced that in January it will only accept employment-based adjustment of status applications with a priority date that is earlier than the Final Action Dates listed in the State Department’s January Visa Bulletin. For family-sponsored filings, the Dates for Filing chart should be used, except for the F2A category. The F2A category has a cutoff date on the Dates for Filing chart and is “current” on the Final Action Dates chart, therefore the F2A category may use the Final Action Dates chart.
Key movements in the January Visa Bulletin:
Employment-Based, First Preference (EB1) Category
The EB1 cutoff date for both India and China moves ahead by five months, to September 1, 2019. The category remains current for all other countries of chargeability.
Employment-Based, Second Preference (EB2) Category
The EB2 category remains current for all countries of chargeability except India and China. EB2 China moves forward to June 1, 2016. EB2 India advances to October 8, 2009.
Employment-Based, Third Preference (EB3) Category
The cutoff date for EB3 China moves forward to December 15, 2017. EB3 India moves ahead to March 22, 2010. The category is current for all other countries of chargeability.
EB3 Other Workers
The cutoff date for EB3 China moves forward to March 1, 2009. EB3 India moves ahead to March 22, 2010. The category is current for all other countries of chargeability.
Employment-Based, Fourth Preference (EB4) Category
The cutoff date for EB4 Mexico moves forward to December 1, 2018. Meanwhile, the cutoff date for El Salvador, Guatemala, and Honduras moves to March 1, 2018. This category remains current for all other countries of chargeability.
Employment-Based, Fifth Preference (EB5) Category
The EB5 Non-Regional Center category remains current for all countries of chargeability except China, and Vietnam. For China, the cutoff date for Non-Regional Center category remains August 15, 2015. For Vietnam, the EB5 cutoff date moves to September 15, 2017. The EB-5 Regional Center Category is unavailable for all countries of chargeability.