April 4, 2021 Newsletter Powered by ABIL

Class Action Filed Against DHS for L-2 and H-4 Processing Delays

On March 22, 2021, the American Immigration Lawyers Association (AILA) and Wasden Banias, LLP, filed a class action lawsuit against the Department of Homeland Security (DHS), challenging processing delays on extensions of status and employment authorization documents (EADs) for H-4 and L-2 nonimmigrant spouses.

AILA President Jennifer Minear said, “DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 nonimmigrants, provide automatic work authorization while DHS processes EAD renewal requests, and allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiration to prevent gaps in work authorization.’

Details:

  • AILA press release, https://www.aila.org/advo-media/press-releases/2021/lawsuit-l2-h4-processing-delays

Labor Dept. Proposes Further Delay of Effective Date of Prevailing Wage Rule 

On March 12, 2021, the Department of Labor‘s Employment and Training Administration (ETA) published a final rule delaying until May 14, 2021, the effective date of a rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, which was published January 14, 2021. ETA proposes to further delay the effective date of the rule by 18 months, until November 14, 2022, along with corresponding proposed delays to the rule’s transition dates. 

The proposed delay notice, which includes a request for comments, will be published in the Federal Register on March 22, 2021. 

Details: 

USCIS Stops Applying Public Charge Final Rule to All Pending Applications and Petitions 

U.S. Citizenship and Immigration Services (USCISstopped applying the public charge final rule to all pending applications and petitions on March 9, 2021. The agency removed content related to the vacated rule from the affected USCIS forms and posted updated versions of affected forms. 

Starting April 19, 2021, USCIS will accept only the 03/10/21 edition of these forms: I-864, I-864A, I-864EZ, I-864W; I-539, I-539A; I-129CW, I-129CWR; I-129; I-485, I-485A, I-485J; and 
I-912. 

Details: 

State Dept. Issues Update on Suspension of Entry for Certain Nonimmigrants

The Department of State issued an update on Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants. That proclamation expired on March 31, 2021.

The Department said that applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing “phased resumption of visa services” guidance. Visa applicants who were previously refused visas due to the restrictions “may reapply by submitting a new application including a new fee.”

The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis, the Department’s said: “Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on the services that post is currently offering.”

Details:

  • Update on Presidential Proclamation 10052, Dept. of State, Apr. 1, 2021, https://travel.state.gov/content/travel/en/News/visas-news/update-on-presidential-proclamation-10052.html

DHS Rescinds Public Charge Rule, Withdraws Appeals of Injunctions Blocking It

The Department of Homeland Security (DHS) rescinded regulations resulting from a final rule issued in August 2019 that was vacated by a federal district court. Under the now-rescinded rule, the government could deny applications for green cards, temporary nonimmigrant status, and naturalization if the government found they relied on—or were at risk of relying on—public benefits. The Biden administration also withdrew the federal government’s appeals of injunctions blocking the DHS public charge rule. However, 11 Republican-led states said that they plan to ask courts to continue the litigation.

USCIS will issue updated guidance on affected forms. In the interim, USCIS said it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Forms I-129, I-129CW, I-539, or I-539A based on whether the public benefits questions (Forms I-129 (Part 6), I-129CW (Part 6), I-539 (Part 5), and I-539A (Part 3)) have been completed or left blank. Those issued Requests For Evidence (RFEs) and Notices of Intent to Deny (NOIDs) will not need to submit information or documents solely as required by the public charge rule. However, all other requests raised in the RFE/NOID must be answered.

Details:

  • “DHS Secretary Statement on the 2019 Public Charge Rule,” USCIS, Mar. 9, 2021, https://www.uscis.gov/news/news-releases/dhs-secretary-statement-on-the-2019-public-charge-rule
  • Final Rule: Inadmissibility on Public Charge Grounds; Implementation of Vacatur, https://bit.ly/3cuVnJG · USCIS guidance, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge · Joint Stipulation to Dismiss, DHS v. State of New York, https://bit.ly/3cspEsn
  • “States Seek to Take Over Defense of ‘Public Charge’ Rule,” Reuters, Mar. 11, 2021, https://www.reuters.com/article/immigration-publiccharge/states-seek-to-take-over-defense-of-public-charge-rule-idUSL1N2L93DH

State Dept. Extends Expansion of Interview Waiver Eligibility

The Department of State, in consultation with the Department of Homeland Security, extended until December 31, 2021, a temporary expansion of the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification to those whose nonimmigrant visas expired within 48 months. The temporary policy was due to expire March 31, 2021.

Previously, only those applicants whose nonimmigrant visas expired within 24 months were eligible for interview waivers. This change “will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff,” the Department of State said. Travelers should review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.

Details:

  • “Expansion of Interview Waiver Eligibility,” Dept. of State, Mar. 11, 2021, https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html

ABIL Asks for Withdrawal of H-1B Lottery Rule Prioritizing Wages; DHS Delays Effective Date Until May 14

The Alliance of Business Immigration Lawyers (ABIL) formally submitted a comment asking the Department of Homeland Security (DHS) to withdraw its final rule prioritizing wages in adjudicating H-1B applications.

ABIL said the final rule “would unlawfully and unjustifiably give preference to workers who earn higher wages, despite the fact that these wages are drawn from limited federal data sources” that are “not designed for application to the H-1B visa program, and bear no relation to the value a highly skilled worker adds to the United States.” ABIL believes that because of the wide variety of occupational categories into which H-1B beneficiaries may fall, the use of wage data as a proxy for high skills and qualifications “will not accomplish the outcomes DHS desires” and instead “will unfairly discriminate against and burden law-abiding employers,” particularly small and medium-size businesses that will find the H-1B program unaffordable as a result.

ABIL also warned that the final rule is likely to “cause more work to be commissioned offshore” and thus undermine opportunities for U.S. workers along with the Biden administration’s desire that more work be performed in the United States.

On March 12, 2021, DHS delayed the effective date of the wage rule until May 14, 2021. DHS said the 60-day delay would allow the agency to “review any questions of fact, law, or policy.”

Details:

  • Comment Submitted by Alliance of Business Immigration Lawyers, Mar. 10, 2021, https://www.regulations.gov/comment/USCIS-2020-0019-1279
  • Notice delaying effective date of final rule, DHS, https://www.govinfo.gov/content/pkg/FR-2021-03-12/pdf/2021-05269.pdf

Lawsuit Challenges USCIS Rejections of H-1B Petitions Filed After October 1

The American Immigration Council (AIC) sued on March 11, 2021, in federal court on behalf of seven U.S. employers whose H-1B petitions were rejected. The lawsuit challenges U.S. Citizenship and Immigration Services’ (USCIS) “arbitrary and capricious refusal to accept timely and properly filed H-1B petitions” subject to the annual cap.

AIC said USCIS rejected the petitions filed after October 1 “simply because the H-1B worker’s intended employment start date—naturally—also fell after October 1.” Based on this timeline, AIC said, “USCIS created an absurd choice: foreign workers needed to start on October 1 (and not a day later), or the U.S. employer had to misrepresent the intended employment start-date by ‘back-dating’ the petition.” In fact, AIC noted, USCIS had accepted some with an employment start date after October 1 without issue.

Details:

  • “Challenging USCIS’ Arbitrary Rejections of Petitions Filed After October 1,” American Immigration Council, https://www.americanimmigrationcouncil.org/litigation/challenging-uscis%E2%80%99-arbitrary-rejections-h-1b-petitions-filed-after-october-1 · Complaint, https://bit.ly/30DKhfF

 



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