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The Department of Homeland Security (DHS) rescinded regulations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 Under the now-rescinded rule, the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. Releases Guidance for Those Previously

Refused Visas Under Travel Bans

On March 10, 2021, the Department of State issued guidance in

response to President Biden's signing of two proclamations on

January 20, 2021, that ended travel bans on certain nationals,

based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya,

Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela,

and Yemen.

Following the Department's review, eligible immigrant visa

applicants whose entry was refused previously under the travel bans

and who did not qualify for waivers before January 20, 2020, may

submit new visa applications. Those whose entry was refused under

the bans and were determined not to qualify for a waiver on or

after January 20, 2020, may request their local embassy or

consulate to reconsider their cases within one year of the date of

waiver refusal without submitting a new application or fee.

Nonimmigrant visa applicants whose entry was refused previously

due to the travel bans and who did not qualify for waivers may

submit new visa applications.

The Department can immediately process visa applications for

eligible individuals from the affected countries. However, local

U.S. embassies or consulates may not be able to schedule all

affected applicants for visa interviews immediately due to

COVID-19-related restrictions.

Applicants should consult the website of their nearest U.S.

embassy or consulate to determine if their cases qualify for

expedited processing.

Details:

  • Rescission of Presidential

    Proclamations 9645 and 9983, Dept. of State, Mar. 10, 2021,

    https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html

USCIS May Reopen H-1B Petitions Denied Under Three

Rescinded Policy Memos

U.S. Citizenship and Immigration Services (USCIS) announced on

March 12, 2021, that it may reopen and/or reconsider adverse H-1B

decisions on Form I-129, Petition for a Nonimmigrant Worker, that

were made based on three rescinded policy memoranda. USCIS said it

“will generally use its discretion to accept a motion to

reopen filed more than 30 days after the decision, if filed before

the end of the validity period requested on the petition or labor

condition application, whichever is earlier, and the decision was

based on one or more policies in the rescinded H-1B memoranda

below.” The rescinded memos include:

  • “Determining Employer-Employee

    Relationship for Adjudication of H-1B Petitions, Including

    Third-Party Site Placements (Reference AFM Chapter

    31.3(g)(16)),” HQ 70/6.2.8 [AD 10-24)] (Jan. 8, 2010)

  • “Contracts and Itineraries

    Requirements for H-1B Petitions Involving Third-Party

    Worksites,” PM-602-0157 (Feb. 22, 2018)

  • “Rescission of the December 22,

    2000 'Guidance memo on H1B computer related

    positions',” PM-602-0142 (Mar. 31, 2017)

USCIS made the rescissions in memoranda issued on June 17, 2020,

and on February 3, 2021.

Details:

  • “USCIS May Reopen H-1B Petitions

    Denied Under Three Rescinded Policy Memos,” USCIS, Mar. 12,

    2021,

    https://www.uscis.gov/news/alerts/uscis-may-reopen-h-1b-petitions-denied-under-three-rescinded-policy-memos

  • USCIS June 17, 2020, memorandum,

    PM-602-0114,

    https://www.uscis.gov/sites/default/files/document/memos/PM-602-0114_ITServeMemo.pdf

  • USCIS February 3, 2021, memorandum,

    PM-602-0142.1,

    https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf

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

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top