Immigration Update: April 2021

On February 24, 2021, President Biden signed Proclamation 10149^[1], which revokes President Trump’s Proclamation 10014, that suspended immigration visas to be processed by U.S. consulates and embassies since April 2020, due to the COVID-19 pandemic. These restrictions are now no longer in effect, allowing U.S. consulates and embassies around the world to issue immigrant visa appointments.

President Trump’s Proclamation 10052, which prevented the issuance of H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021. Visa 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, and previously rejected applicants due to then-existing restrictions implemented by previous Proclamation, may also now re-apply by submitting a new application.

[1] Revoking Proclamation 10014, signed by President Biden (February 24, 2021), available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/

Secretary Mayorkas has designated Venezuela for Temporary Protected Status (“TPS”). The TPS designation lasts for 18 months, until September 2022. This designation allows Venezuelan nationals (and individuals without nationality who last resided in Venezuela) to file initial applications for TPS and Employment Authorization Documents, so long as requirements are met. TPS can be extended to a country with conditions that fall into one, or more, of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. Only individuals who can demonstrate continuous residence in the United States as of March 8, 2021, are eligible for TPS under Venezuela’s designation.^[2]

[2] U.S. Department of Homeland Security: Secretary Mayorkas Designates Venezuela for Temporary Protected Status for 18 Months (March 8, 2021), available at whitehouse.gov/briefing-room/statements-releases/2021/03/08/u-s-department-of-homeland-security-secretary-mayorkas-designates-venezuela-for-temporary-protected-status-for-18-months/

On March 19, 2021, U.S. Customs and Border Protection announced that temporary travel restrictions between the United States and Canada, and between the United States and Mexico, at land ports of entry along the border (including passenger ferry services and pleasure boat travel) will remain in effect through April 21, 2021. Travel will be limited to that deemed “essential,” due to continued transmission of the virus associated with the COVID-19 pandemic. At this time, these restrictions do not apply to air, freight rail, or sea travel between the countries.^[3]

[3] Temporary Travel Restrictions to Land Border and Ferries Between the United States, Canada and Mexico, by Customs and Border Patrol (March 18, 2021), available at: https://help.cbp.gov/s/article/Article-1694?language=en_US

On March 11, 2021, 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. 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.^[4]

[4] State Department’s Expansion of Interview Waiver Eligibility (March 11, 2021), available at: https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html

The American Immigration Council (AIC), brings a lawsuit in federal court on behalf of seven U.S. employers whose H-1B petitions were rejected, on March 11, 2021. The lawsuit challenges U.S. Citizenship and Immigration Services (USCIS) practices that included “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.^[5]

[5] “Challenging USCIS’ Arbitrary Rejections of Petitions Filed After October 1,” American Immigration Council; Acquia Inc, et al., v. USCIS, Case No. 1:21-cv-10421 (D. Mass.)Complaint is available at: https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/challenging_uscis_arbitrary_rejections_of_h-1b_petitions_filed_after_october_1_complaint.pdf

American Immigration Lawyers Association has joined others to file a class action on March 22nd against DHS challenging the extraordinary lengthy processing delays for extension of status and extensions of employment authorization documents (EAD) for H-4 and L-2 nonimmigrant spouses, which was a direct result from Trump administration’s a new regulation for implementing biometrics requirement for H-4 and L-2 and other dependents seeking to extend their stay in the U.S. These delays has put families at risk of immense loss of income and instability. USCIS data for fiscal years (FY) 2014 through 2018^[6] shows that the agency is failing this Congressional mandate by adjudicating cases at an unacceptably and increasingly slow pace. Other agency data lays bare a USCIS “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017. This total amounts to more than a 100 percent increase over the span of one year despite only a four percent rise in case receipts during that period.^[7]

[6] USCIS Webpage, “Historical National Average Processing Times for All USCIS Offices” (Nov. 29, 2018); https://www.aila.org/infonet/processing-time-reports/historical-average-processing-times/uscis-national-average-processing-times-9-30-18.

[7] DHS, “Annual Report on the Impact of the Homeland Security Act on Immigration Functions Transferred to the Department of Homeland Security” (Apr. 13, 2018); https://www.uscis.gov/sites/default/files/document/reports/Annual-Report-on-the-Impact-of-the-Homeland-Security-Act-on-Immigration-Functions-Transferred-to-the-DHS-FY19-Signed-Dated-4.29.20.pdf

On March 20, 2020, DHS announced a flexibility announcement and it notes that  DHS will evaluate certain COVID-19-related Form I-9 completion practices on a case-by-case basis. As of April 1, 2021, this in person verification requirement would only apply to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. They are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. However, nothing herein precludes employers from commencing, in their discretion, the in-person verification.^[8]

[8] DHS announces flexibility in requirements related to Form I-9 compliance, (March 20, 2021) Worksite Enforcement, available at: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

On March 18, 2021, Senators Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa) reintroduced the EB-5 Reform and Integrity Act of 2021, to combat alleged fraud and national security vulnerabilities within the EB-5 regional center program, which provides a pathway for foreign investors to obtain EB-5 visas. First introduced in 2019, the bill would give the U.S. Department of Homeland Security increased authority over the EB-5 regional centers. DHS would have the ability to deny or revoke approved visa applications from investors engaged in program fraud or are deemed a national security risk.

The bill proposes additional accountability measures including regular DHS audits by the DHS regional centers and performing on-site visits to EB-5 projects, and new disclosure requirements  to certify center compliance rules. The bill would also reauthorize the regional center program which is currently set to expire on June 30, 2021.^[9]

[9] Grassley, Leahy Introduce New EB-5 Investor Visa Integrity Reforms EB-5 Regional Center Program will expire in June absent bipartisan integrity reforms (March 18, 2021), available at: https://www.grassley.senate.gov/news/news-releases/grassley-leahy-introduce-new-eb-5-investor-visa-integrity-reforms#:~:text=Chuck%20Grassley%20(R%2DIowa),EB%2D5%20investor%20visa%20Regional

On March 9, 2021, Secretary of Homeland Security Alejandro N. Mayorkas announced that the government would no longer defend the “public charge” rule (84 Fed. Reg. 41292 (Aug. 14, 2019)) before the U.S. Supreme Court. It was found that the  public charge rule was not in the interest of the public and not an efficient use of government resources. Accordingly, the Supreme Court dismissed the public charge rule case on March 9. USCIS has confirmed that foreign nationals no longer need to provide information solely required by the 2019 regulation. This means that applicants for adjustment of status to permanent residence are no longer obligated to submit Form I-944, the declaration of self-sufficiency, and related documentation.

The government has been filing requests to dismiss all of its appeals of unfavorable lower court rulings on public charge around the country. Appeals in the U.S. Supreme Court and in the Seventh Circuit (Cook County et al. v Wolf et al. 19-cv-6334) are now dismissed.^[10]

[10] DHS Secretary Statement on the 2019 Public Charge Rule (March 9, 2021), available at: https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule