International Law and Immigration

Immigration Update: March 2021

USCIS to delay Implementation of Wage-Weighed H-1B Selection until December 31, 2021.

The Department of Homeland Security will delay the effective date of its H-1B cap allocation rule to December 31, 2021 in order to provide more time for development, testing, training and public outreach, according to a forthcoming announcement in the Federal Register. The final rule would replace the USCIS H-1B cap lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s Occupational Employment Statistics (OES) four-level wage system. It would give priority in the H-1B selection process to foreign nationals whose offered salary falls in the highest wage level for their occupation and geographic area.

The delay announcement follows a January 21 regulatory freeze request from the White House in which the Biden Administration asked federal agencies to consider delaying published rules that had not already taken effect[1].


[1] DHS Delays Effective Date of H-1B Selection Final Rule February 4, 2021, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions; Delay of Effective Date

DHS Withdraws Proposed Rule to Rescind H-4 Work Authorization Program

On January 25, 2021, The Department of Homeland Security withdrew its proposed rule that sought to eliminate the H-4 employment authorization document program for eligible spouses of H-1B workers. 

The  rule, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” was proposed and submitted to the Office of Information and Regulatory Affairs (OIRA) on February 20, 2019, largely in response to President Trump’s Buy American and Hire American Executive Order, which had emphasized the former administration’s focus on protecting American workers. At the time of its withdrawal, the proposed rule was under review by OIRA.

The Biden Administration has indicated that it may expand the H-4 EAD program to include other dependents in H-4 status. A provision to this end was included in the U.S. Citizenship Act of 2021, proposed legislation that President Biden sent to Congress for consideration on January 20, 2021.

However, the current status for H-4 adjudications still are under massive delays by USCIS, causing many immigrant workers to lose their jobs, insurance and no hope of transparency of process by USCIS and the Ombudsman Office on adjudication. According to the USCIS Ombudsman Office, the office is investigating the massive delays in adjudication however no concrete actions are yet taken by the agency and immigrants are still given a run around. The current processing time for I-539 for H-4 status at the California location is March 28, 2020, which is at least a year behind. USCIS stated that the delay is caused by COVID shutdowns. However, these delays seem to be even before the shutdown began and caused havoc on innocent immigrants’ lives.

Establishment of Interagency Task Force on the Reunification of Families

On February 2, 2021, President Biden officially signed an order that creates a task force that will seek to reunite families that were separated at the border during the previous administration, specifically revoking former President Trump’s executive order that established the child separation policy. The task force’s main duties include working nationwide to find parents and children who were separated at the border, recommending to the President and federal agencies measures that can be taken to reunify families, and suggesting steps to prevent family separation in the future[2].


[2] President Biden’s Executive Order on February 2, 2021 “Executive Order on the Establishment of Interagency Task Force on the Reunification of Families“ at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-the-establishment-of-interagency-task-force-on-the-reunification-of-families/

Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border

The executive order seeks to develop a strategy to address the root causes of cross-border migration and establish a more humane U.S. asylum system. It also directs the Department of Homeland Security (DHS) to take steps to end the previous administration’s “Migrant Protection Protocols program” (or the “remain in Mexico policy”), which, according to the language of the Executive Order, had led to a humanitarian crisis at our border with Mexico[3].


[3] President Biden’s Executive Order on February 2, 2021 “Executive Order Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border“ at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-creating-a-comprehensive-regional-framework-to-address-the-causes-of-migration-to-manage-migration-throughout-north-and-central-america-and-to-provide-safe-and-orderly-processing/

Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans

The executive order directs the Secretary of State, the Attorney General, and the Secretary of Homeland Security to review existing immigration regulations, orders, guidance documents, policies, and any related agency actions that may be inconsistent with the Biden Administration’s strategies of promoting integration, inclusion, and citizenship. In conducting this review, federal agencies will identify barriers that impede access to immigration benefits and adjudication of these benefits in a fair and efficient manner. Within 90 days of the date of this order, agencies will submit a plan to the President describing steps and recommendations on how to remove these barriers.

The directive specifically instructs federal agencies to review the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, policies related to public charge grounds for inadmissibility, including the DHS Public Charge Rule, the naturalization process, and related policies[4].


[4] President Biden’s Executive Order on February 2, 2021 “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans“ at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/

U Visa Program Faces Prolonged Delays

The waiting period to get an adjudication for a U visa runs into many years. Many immigrants risk their lives to cooperate with law enforcement and still do not get their applications adjudicated for a long time with no security as the time to be on waitlist/deferred action goes from 4-6 years. Currently, USCIS is processing U visa applications from March 2016.

In April 2020, USCIS reported that more than 250,000 U visa applications were currently pending. While their application is pending, a noncitizen does not receive employment authorization and can be subject to deportation. So, many immigration attorneys are taking the route of filing federal litigation to have their client’s application adjudicated.

These delays certainly affect many immigrants not only emotionally but fear for safety due to cooperation still prevails. 

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