March 3, 2021 Newsletter Powered by ABIL

“U.S. Citizenship Act of 2021” Unveiled by Biden Administration, Democrats

The Biden administration and Democratic sponsors in the Senate and House of Representatives have put forth a sweeping new immigration reform bill, the 353-page “U.S. Citizenship Act of 2021.” The bill states its purpose as providing an earned path to citizenship, addressing the root causes of migration, responsibly managing the southern border, reforming the immigrant visa system, and other goals. The bill does not emphasize enforcement.

The bill would amend the Immigration and Nationality Act by striking the term “alien” and replacing it with “noncitizen.” The term “alien” has been in use for centuries, but some find it demeaning. According to reports, Tracy Renaud, who is serving as acting director for U.S. Citizenship and Immigration Services, recently sent a memorandum to agency staff encouraging them to avoid use of the terms “alien” and “illegal alien” and instead to use “more inclusive language in the agency’s outreach efforts, internal documents and in overall communication with stakeholders, partners and the general public,” including “noncitizen” and “undocumented noncitizen” or “undocumented individual.”

It is likely that the bill will not pass intact, but smaller targeted pieces could be moved forward and supported separately. Another avenue being suggested for implementation is via the budget reconciliation process.

Below is a non-exhaustive list of selected highlights of the proposed legislation. The bill would:

  • Establish an “earned path to citizenship” for “eligible entrants” (and their spouses and children) that provides for an initial period of authorized admission as a “lawful prospective immigrant,” valid for six years and extendable. Qualifying individuals would also receive a work permit and travel authorization. A lawful prospective immigrant could become eligible for permanent residence after at least five years of prospective status. Prospective applicants would need to have been in the United States before 2021.
  • Raise to 170,000 (from 140,000) the annual number of employment-based immigrants, and add unused employment-based green cards to the maximum. (Derivatives of employment-based immigrants will not count against numerical caps.)
  • Provide permanent residence, without numerical limits, to international students with PhDs in science, technology, engineering, and math fields from U.S. universities.
  • Provide for adjustment to lawful permanent resident status for noncitizens who entered the United States as children (e.g., “Dreamers” under the Deferred Action for Childhood Arrivals program).
  • Provide permanent residence to those who have had an approved immigrant petition for 10 years.
  • Provide for adjustment to lawful permanent resident status for agricultural workers who have performed agricultural labor or services during the immediately preceding five-year period for at least 2,300 hours or 400 work days.
  • Provide for adjustment to lawful permanent resident status for certain nationals of countries designated for temporary protected status or deferred enforced departure.
  • Increase diversity green cards from 55,000 to 80,000 each year. (Derivatives of DV immigrants will not count against numerical caps.)
  • Eliminate employment-based per-country levels.
  • Increase immigrant visas for “other workers.”
  • Provide for the establishment of a procedure to temporarily limit admission of certain immigrants in geographic areas or labor market sectors that are experiencing high levels of unemployment.
  • Establish a pilot program for up to five years to admit annually up to 10,000 “admissible immigrants whose employment is essential to the economic development strategies of the cities or counties in which they will live or work.”
  • Consider prioritizing nonimmigrant visas (including H-1B) based on the wages offered by employers.
  • Allow work authorization for H-4 nonimmigrant spouses and children of H-1B nonimmigrants.
  • Provide for expediting legitimate trade and travel at ports of entry.
  • Authorize employment for asylum applicants who are not detained and whose applications have not been determined to be frivolous.
  • Establish an employment authorization commission to make recommendations on policies to verify the eligibility of noncitizens for employment in the United States.
  • Conduct a study on factors affecting employment opportunities for immigrants and refugees with professional credentials obtained in foreign countries.

The bill also includes provisions to address “migration needs by strengthening regional humanitarian responses for refugees and asylum seekers in the Western Hemisphere and [strengthen] repatriation initiatives, promote “immigrant and refugee integration,” address immigration court backlogs, and expand programs to address the “root causes of migration” and “responsibly [manage] the southern border.”

Details:

  • Text of House bill, https://lindasanchez.house.gov/sites/lindasanchez.house.gov/files/2021.02.18%20US%20Citizenship%20Act%20Bill%20Text%20-%20SIGNED.pdf
  • Text of Senate bill, https://www.menendez.senate.gov/imo/media/doc/USCitizenshipAct2021BillText.pdf · Siskind Summary, https://bit.ly/3duYkfn
  • “Joe Biden’s Administration Orders Immigration Officials to Remove ‘Alien’ and ‘Illegal Alien’ From Official Communications and Use ‘Noncitizen’ Instead to Avoid ‘Dehumanizing Language,’ ” Daily Mail, Feb. 16, 2021, https://www.dailymail.co.uk/news/article-9265823/Biden-orders-officials-remove-illegal-alien-official-communications-use-non-citizen.html?ITO=applenews
  • ” ‘Aliens’ No More: Biden Administration Directs Immigration Officials To Use ‘Inclusive Language,’ ” Forbes, Feb. 16, 2021, https://bit.ly/3dx978H
  • “New Bill Has Many Good But Two Bad Measures for Employment Immigrants,” Forbes, Feb. 19, 2021, https://www.forbes.com/sites/stuartanderson/2021/02/19/new-bill-has-many-good-but-two-bad-measures-for-employment-immigrants/?sh=4bec5be35af9
  • “Democrats Introduce an Immigration Overhaul Bill. Here’s What Would Change,” NBC News, Feb. 18, 2021, https://www.nbcnews.com/politics/immigration/white-house-throws-support-behind-democratic-immigration-bill-ahead-rollout-n1258206
  • “Biden’s Immigration Bill Lands on the Hill Facing Bleak Odds,” Politico, Feb. 18, 2021, https://www.politico.com/news/2021/02/18/bidens-immigration-bill-bleak-odds-469769
  • “Democratic Lawmakers Unveil Biden-Backed Immigration Overhaul Bill,” CBS News, Feb. 18, 2021, https://www.cbsnews.com/news/immigration-bill-democrats-biden-unveil/
  • “House Announces Sweeping Immigration Bill,” CNN, Feb. 18, 2021, https://www.cnn.com/2021/02/18/politics/biden-immigration-legislation/index.html

 

USCIS Reaches FY 2021 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) formally announced that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for fiscal year (FY) 2021. USCIS has also completed posting of non-selection notifications to registrants’ online accounts. This announcement formally closes the FY 2021 H-1B lottery season based on the registration period of March 2020. Any selected and timely filed FY 2021 H-1B petitions still pending adjudication with USCIS are included in the count and will proceed to adjudication.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Details:

  • “USCIS Reaches Fiscal Year 2021 H-1B Cap,” USCIS, Feb. 16, 2021, https://www.uscis.gov/news/alerts/uscis-reaches-fiscal-year-2021-h-1b-cap · H-1B Cap Season, USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season

 

USCIS Clarifies Delays at Lockboxes in Issuing Receipt Notices for I-765 Employment Authorization for OPT

U.S. Citizenship and Immigration Services (USCIS) notified stakeholders that the agency continues to experience delays at certain lockboxes in issuing receipt notices for Form I-765, Application for Employment Authorization, based on eligibility categories relating to optional practical training (OPT) for F-1 students. USCIS currently recommends that such applicants wait eight weeks before contacting the agency to ask about case status.

USCIS provided clarifications and reminders:

  • The delays will not affect the received date. All submissions are date-stamped upon arrival at the lockbox, so regardless of when the lockbox processes the application, the received date will reflect the date it actually arrived at the lockbox.
  • USCIS will not reject applications solely because they were filed at the lockbox address in use before the change to the filing address instructions announced on January 8, 2021. The agency encourages applicants filing Form I-765 to always check the form instructions on USCIS’s website for the most up-to-date filing instructions.
  • If an applicant timely filed Form I-765 based on STEM [science, technology, engineering, and mathematics] OPT, and the post-completion OPT period expires while the application is pending, USCIS will automatically extend the employment authorization for 180 days. The Form I-20 endorsed by the designated school official recommending a STEM extension together with the expired Form I-766 employment authorization document issued for post-completion OPT establishes identity and work authorization for purposes of documenting employment authorization.

Details:

  • “Direct Filing Addresses for Form I-765, Application for Employment Authorization,” Feb. 19, 2021, https://www.uscis.gov/i-765-addresses
  • USCIS Lockbox Updates (the notice above had not yet been posted on USCIS’s website as of February 21, 2021), https://www.uscis.gov/news/alerts/uscis-lockbox-updates

 

President Biden Revokes Trump-Era Ban on Entry of Many Immigrants; State Dept. Issues Instructions on Exceptions to Nonimmigrant Ban

On February 24, 2021, President Biden revoked former President Trump’s proclamation issued in April 2020 that banned many immigrants from entering the United States.

Biden Proclamation Revoking Immigrant Ban

Included in the Trump administration’s freeze on immigrant admissions were green cards for new immigrants and certain family members.

President Biden’s proclamation states that the Trump-era ban, whose stated purpose was to prevent entry by those who presented a risk to the U.S. labor market during the coronavirus outbreak, does not advance the interests of the United States. “To the contrary, it harms the United States” and “harms industries in the United States that utilize talent from around the world,” the new proclamation states. It also “harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received” fiscal year 2020 diversity visas.

The Biden proclamation orders the Departments of State, Labor, and Homeland Security to review any related regulations, orders, guidance, policies, or other agency actions and, as appropriate, issue revised guidance consistent with the new proclamation.

DOS Instructions on Exceptions to Nonimmigrant Ban

The new Biden proclamation did not lift a Trump-era ban on certain H-1B, H-2B, L-1, and J-1 temporary work visas, set to expire on March 31, 2021. It is unclear whether the Biden administration plans to revoke that ban before it expires. In the meantime, the Department of State announced on February 24, 2021, that those who believe they may qualify for a national interest or other exception should “follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.”

Details:

  • “A Proclamation on Revoking Proclamation 10014,” Feb. 24, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/
  • “National Interest Exceptions to Presidential Proclamation 10052,” DOS, Feb. 24, 2021, https://bit.ly/3kvXRuT
  • “Biden Reopens Gateway for Green Cards, Reversing Trump COVID-19 Freeze,” National Public Radio, Feb. 24, 2021, https://www.npr.org/2021/02/24/971206197/biden-reopens-gateway-for-green-cards-work-visas-reversing-trump-covid-19-freeze
  • “White House Lifts Trump Order That Temporarily Banned Certain Immigrant Visas During Pandemic,” CNN, Feb. 25, 2021, https://www.cnn.com/2021/02/24/politics/biden-immigration-coronavirus-pandemic/index.html
  • “The Biden Administration Reversed a Policy That Used the Coronavirus Pandemic To Limit Immigration,” BuzzFeed, Feb. 24, 2021, https://www.buzzfeednews.com/article/hamedaleaziz/biden-green-card-policy-

 

March Visa Bulletin Shows Big Leap Forward for Chinese and Indian EB-1s

The Department of State’s Visa Bulletin for March 2021 shows a seven-month leap forward for Chinese and Indian green card applicants in the employment-based first preference category, with a final action date of August 1, 2020, for both countries. In February, immigrant visas were available for those with priority dates earlier than January 1, 2020.

The March bulletin also includes information on diversity category cut-offs for April and instructions on reporting address changes for overseas cases.

Details:

  • Visa Bulletin for March 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-march-2021.html

 

USCIS Updates FAQ on H-1B Electronic Registration

U.S. Citizenship and Immigration Services updated its frequently asked questions (FAQ) on the H-1B registration process, which opens at noon ET on March 9, 2021, and runs through noon ET March 25, 2021. USCIS also announced that employers and their representatives can create H-1B Registrant Accounts beginning at noon ET on March 2, 2021.

Details:

  • “H-1B Electronic Registration Process” (scroll down for FAQ dropdown), USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process

 

USCIS Extends Flexibilities for Certain F-1 Foreign Students Applying for OPT

U.S. Citizenship and Immigration Services (USCIS) announced flexibilities for certain foreign students applying for Optional Practical Training (OPT) whose receipt notices for Form I-765, Application for Employment Authorization, are delayed. The flexibilities apply only to applications received on or after October 1, 2020, through May 1, 2021.

To allow F-1 students to complete their full periods of requested OPT (up to 12 months), the 14-month period within which they must complete OPT will start from the date of approval of the I-765 for applications for post-completion OPT. Beginning on February 26, 2021, USCIS is approving applications for post-completion OPT with validity dates reflecting the same amount of time as originally recommended by the designated school official on Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

USCIS also said that F-1 students requesting post-completion OPT who receive I-765 approval 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 employment authorization document due to USCIS error.

USCIS is also accepting certain refiled I-765s for OPT and STEM (science, technology, engineering, and mathematics) OPT as filed on the original date until May 31, 2021.

Details:

  • “USCIS Extends Flexibilities to Certain Applicants Filing Form I-765 for OPT,” USCIS, https://www.uscis.gov/news/alerts/uscis-extends-flexibilities-to-certain-applicants-filing-form-i-765-for-opt

 

H-2B Cap Reached for Second Half of FY 2021

U.S. Citizenship and Immigration Services (USCIS) has received enough petitions to meet the congressionally mandated H-2B cap for temporary nonagricultural workers for the second half of fiscal year (FY) 2021.

February 12, 2021, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2021. USCIS said it will reject new cap-subject H-2B petitions received after February 12 that request an employment start date before October 1.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

  • “H-2B Cap Reached for Second Half of FY 2021,” USCIS, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021



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