FY2022 H-1B CAP UPDATE – 3/29/2021

Posted on by Susan Lane

USCIS began notifying registrants of cap selection on Saturday, March 27, 2021. The American Immigration Lawyers Association (AILA) has asked USCIS to confirm if USCIS has completed its first round of notifications.  Although USCIS did not confirm either way, USCIS did inform AILA that the agency plans to send out formal communications to inform the public regarding if and when the selection period has closed and that stakeholders should see communications regarding this update from USCIS in the coming days.

H-1B FY2022 CAP UPDATE: H-1B Initial Electronic Registration Selection Process Completed

Posted on by Susan Lane

USCIS has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap) including the advanced degree exemption (master’s cap). We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):

  • Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
  • Selected: Selected to file an H-1B cap petition.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

For more information, visit the H-1B Electronic Registration Process page.

April 2021 Visa Bulletin – Chats with Charlie

Posted on by Susan Lane

The Department of State is now conducting a “Chats with Charlie” regarding the Visa Bulletin during which Charlie Oppenheim responds to questions about the Visa Bulletin. Take-aways from the first “Chats with Charlie” are set forth below.

  •  EB-1 China and EB-1 India: Charlie expects these categories to remain current through the rest of the fiscal year barring any extraordinary spikes in demand, which he does not anticipate.

  • Charlie expects the Employment Based Final Action Dates to reach the dates in the Dates for Filing chart by the end of FY2021.

  • EB-2 India: EB-2 India experienced dramatic forward movement in April 2021 and will continue to advance dramatically in May 2021.

  • EB-3 China and EB-3 India: Charlie expects there to be even more aggressive forward movement in EB-3 China and EB-3 India in the coming months than what we have seen in March 2021 and April 2021. The EB-3 China and EB-3 India Final Action Dates are ahead of EB-2 China and EB-2 India respectively. Charlie believes there were a large number of downgrades but has no visibility into this likely demand until visa numbers are requested at the end of the adjustment of status processing.

The status of Trump’s H-1B rules now that Biden is in office

Posted on by Susan Lane

Forbes has posted a great article explaining the status of Trump’s H-1B rules under the Biden administration. 

“During its four years, the Trump administration inflicted most of its immigration damage on businesses and high-skilled foreign nationals through memos, executive orders and proclamations. Near the end, Trump officials published two regulations to restrict H-1B visas and prepared a third rule for publication. Businesses, universities and H-1B professionals now wonder what the start of the Biden administration means for the fate of these three Trump-era H-1B rules.

One indication as to the fate of these rules came on Joe Biden’s first day. A January 20, 2021, memorandum sent by White House Chief of Staff Ronald A. Klain asked executive departments and federal agencies to postpone rules for 60 days that ‘have been published in the Federal Register . . . but not taken effect.’ The memorandum adds: ‘For rules postponed in this manner, during the 60-day period . . . consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules. As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.’

For rules not yet published, the memorandum states, ‘With respect to rules that have been sent to the OFR [Office of the Federal Register] but not published in the Federal Register, immediately withdraw them from the OFR for review and approval . . .'”

Continue Reading at Forbes.com

The U.S. Citizenship Act of 2021

Posted on by Susan Lane

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.

Expansion of Nonimmigrant Visa Interview Waiver Eligibility

Posted on by Hayden Smith

Department of State announced that it has temporarily expanded 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 24 months. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver. This policy is in effect until March 31, 2021.

DACA UPDATE: USCIS must accept new DACA applications

Posted on by Susan Lane

A federal judge ruled Friday (12/4/2020) that the Trump administration must fully restore the so-called Dreamers program that protects undocumented immigrants brought to the U.S. as children, opening the door to new applicants for the first time since 2017.

USCIS will again accept first-time requests for consideration of deferred action under DACA based on the terms of the DACA policy in effect prior to September 5, 2017. USCIS will also accept DACA renewal requests; applications for advance parole documents; extend one-year grants of deferred action under DACA to two years; and extend one-year EADs under DACA to two years.