The U.S. Citizenship Act of 2021

President Biden is sending a bill to Congress on day one to “restore humanity and American values to our immigration system” per the press release.

Some highlights of the bill are set forth below. Exactly how these provisions will be implemented is not yet known.

Create an earned roadmap to citizenship for undocumented individuals. The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes.

Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.

Keep families together. The bill reforms the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.  It also eliminates the so-called “3 and 10-year bars,” and other provisions that keep families apart. The bill further supports families by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families. It also provides protections for orphans, widows, children, and Filipino veterans who fought alongside the United States in World War II. Lastly, the bill allows immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.

Grow our economy. This bill clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps. The bill makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States; improves access to green cards for workers in lower-wage sectors, and eliminates other unnecessary hurdles for employment-based green cards.

The bill provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the system.

The bill also creates a pilot program to stimulate regional economic development, gives DHS the authority to adjust green cards based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.

“Incentivizes higher wages for non-immigrant, high-skilled visas” is concerning, as DOL just issued a final rule that increases prevailing wages and DHS issued a rule on a wage-based H-1B CAP lottery selection process. The Biden-Harris Administration is planning to issue a regulatory freeze on Trump’s “midnight regulations” that he issued in his final days, which should include these new H-1B rules. We will closely monitor actions and updates.

Good H-1B News Update!

The interim final rule by the Department of Labor increasing H-1B and labor certification wages which went into effect on October 8, 2020 AND the Interim Final Rule significantly changing the standards for H-1B “specialty occupation” which was to take effect on December 7, 2020 have been set aside by the U.S District Court, Northern District of California, in the matter of Chamber of Commerce v. DHS. This could not be more welcome news!

DOL will now have to revert its wage database back to reflect the wages prior to the implementation of the wage hike rule. At this time, it is not known if DOL/DHS will appeal the court’s decision.  The judgment applies universally and not just to the parties to the litigation.

H-1B 2021 LOTTERY, PART 2

USCIS did not receive enough H-1B petitions in the first round of the lottery to reach the cap, so it is conducting a 2nd lottery selection this week. Employers will have a 90 day period within which to file the H-1B petitions that are selected this week. Check your USCIS online account to see if your registration account has changed from “submitted” to “selected.”

PRESIDENT TRUMP’S JUNE 22, 2020 PROCLAMATION

We are all aware that this proclamation suspends the entry into the U.S. of certain H-1B, H-2B, J and L nonimmigrants and their spouses and children.

There are few exceptions and they primarily focus on the national interest of the U.S. including providing medical care or medical research for COVID-19, providing services critical to defense or law enforcement, and providing services that facilitate the economic recovery of the U.S.

Be aware that this proclamation also instructs other actions to be taken to ensure that the presence in the U.S. of H-1B nonimmigrants and those seeking EB-2 or EB-3 benefits do not disadvantage U.S. workers. There are no details provided at this time as to what these actions may be, but speculation abounds that they could include an increase in Department of Labor audits of labor certifications and possibly re-testing of the market for labor certifications.

President Trump’s Proclamation effective June 24, 2020

The Proclamation suspending entry of nonimmigrants to the U.S. is effective June 24, 2020 at 12:01 AM ET and extends through December 31, 2020, subject to revisions and extension.

This Proclamation extends the earlier April 22, 2020 Proclamation suspending entry of certain immigrants into the U.S. through the end of the year as well.

The Proclamation affects the following nonimmigrant categories plus spouse & children: H-1B, H-2B, J and L.

It only applies to those individuals if they are:

·        Outside of the U.S. on the effective date of the Proclamation;

·        Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and

·        Do not have an official travel document other than a visa such as advance parole which is valid on the effective date of the Proclamation.

It is not clear if Canadian citizens who are not required to have a visa will be exempt from this Proclamation.

There are limited exemptions such as those seeking to enter the U.S. to provide temporary labor essential to the U.S. food supply chain, or those who are need to provide services in the national interest of the U.S. such as defense, medical care to COVID-19 patients, or essential to facilitate the immediate and continued economic recovery of the U.S.

This Proclamation does not affect those nonimmigrants already in the U.S.

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This office advises against international travel in the event further restrictions are placed on nonimmigrants.

H-1B CAP UPDATE

USCIS completed its H-1B CAP registration lottery and all of those employers with registrations selected in the lottery have been notified. USCIS announced that nearly 275,000 unique registrations were submitted during the initial registration period. Roughly 46% of all registrations were for prospective beneficiaries with U.S. advanced degrees. 275,000 registrations is more than three times the H-1B annual limit of 85,000. Nearly 81% of submitted registrations were for potential beneficiaries from India (67.7%) and China (13.2%).

H-1B Premium Processing Update

USCIS will be temporarily suspending Premium Processing for FY2021 Cap-Subject Petitions. Petitioners filing FY 2021 cap-subject H-1B petitions will not be able to request premium processing when USCIS begins accepting cap-subject petitions on April 1. Until premium processing resumes for FY 2021 cap-subject H-1B petitions, USCIS will reject any Form I-907 concurrently filed with a cap-subject H-1B Form I-129.

As USCIS has done in the past, premium processing will resume in a two-phased approach during the FY 2021 cap season so that USCIS can best manage premium processing requests.

USCIS will resume premium processing for FY 2021 cap-subject H-1B petitions requesting a change of status from F-1 nonimmigrant status no later than May 27, 2020, and will notify the public before premium processing resumes for these petitions.

The earliest date that USCIS will resume premium processing for all other FY 2021 cap-subject H-1B petitions is June 29, 2020.

Petitioners filing FY 2021 H-1B cap-subject petitions will be eligible to upgrade to premium processing by filing Form I-907 once premium processing resumes, as applicable. USCIS will notify the public with a confirmed date for resuming premium processing for FY 2021 H-1B cap-subject petitions.

At this time, premium processing remains available for H-1B petitions that are exempt from the cap, such as extension of stay requests.

USCIS To Implement H-1B Cap Online Registration System

U.S. Citizenship and Immigration Services (USCIS) has announced that it has completed testing of its new online H-1B registration system for the upcoming FY2021 cap season, with an initial registration period starting March 1, 2020.

Under this new process, employers seeking cap-subject H-1B workers, or their authorized representatives, will complete an initial registration process that requires basic information about the company and each requested worker, in addition to a $10 fee per applicant. This registration period will be held from March 1 through March 20, 2020. If the number of registrants meets the annual numerical cap for H-1B petitions, USCIS will run a random lottery on the pool of registrations no later than March 31, 2020. If the registration is selected in the lottery, Petitioners will then be eligible to file cap-subject H-1B petitions during a 90-day filing period on behalf of those beneficiaries.

USCIS is currently in the processing of posting instructions on its website and hosting webinars about this registration system.

If you need to file a cap subject petition, please contact Susan Lane for more information.

H-1B CAP SEASON – FY 2021

This year, USCIS will be utilizing an electronic registration requirement for H-1B cap subject petitions. USCIS will be providing additional information and instructions regarding the registration requirement, which will be online and will require a $10 registration fee for each case. USCIS will open the registration period from March 1, 2020 through March 20, 2020. The random selection lottery process will be run after the registration period, assuming USCIS receives more registrations than slots available. If selected, a 90 day period of time will be given during which the H-1B petition must be filed.

If you anticipate needing to file an H-1B cap subject petition this year, please contact Susan Lane immediately for more information.