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 (USCIS) stopped

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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