Visa Bulletin Updates
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For March 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].
In April, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in April.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Rescission of the 2017 Computer Programmer Memorandum
On February 3, 2021, USCIS issued a new Policy Memorandum, issued based on the ruling by the Ninth Circuit in Innova Solutions v. Baran, that rescinds the 2017 Trump-era Computer Programmer Policy Memorandum. The 2017 Policy Memo rescinded the previous USCIS policy and disqualified the Computer Programmers occupation as a specialty occupation. The Trump-era memo’s policy resulted in a significant increase in RFEs and denials in H-1B cases.
In December 2020, the Ninth Circuit issued a decision in Innova Solutions v. Baran, finding that USCIS’s denial of an H-1B petition that held that Computer Programmers was arbitrary. USCIS argued that the occupation of Computer Programmer did not qualify as a specialty occupation because the Occupational Outlook Handbook, a Department of Labor publication, noted that some are hired with only an associate’s degree. The court found that USCIS overlooked relevant language in the OOH that states that computer programmers are normally required to have a bachelor’s degree, which is the dispositive relevant factor under the statute and regulations that should have been considered. As a result, USCIS rescinded the 2017 Trump-era Memorandum to ensure consistent adjudications. USCIS has stated that further guidance is forthcoming.
USCIS Expands Premium Processing for E-3 Petitions
USCIS announced on Feb. 24, 2021 that petitioners filing a request for a change or extension of status to E-3 classification will now have the option to request premium processing service. The E-3 classification applies only to nationals of Australia who are coming to the United States solely to perform services in a specialty occupation.
An Australian national who is outside the United States may apply for an E-3 nonimmigrant visa directly through the Department of State. For Australians already in the U.S., a Employer may file a Form I-129 with USCIS and request change of status, or if the Australian is already in E-3 status, a change of employer. To qualify for the E-3 classification, the Australian citizen must have a legitimate offer of employment in a specialty occupation and possess the necessary academic or other qualifying credentials, among other things. USCIS’s premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days.
E-Verify Updates the SSA TNC Process
On March 4, 2021, E-Verify updated the Social Security Administration (SSA) Tentative Nonconfirmation (TNC) process. Employees who receive an SSA TNC with a citizenship mismatch have the option to call DHS to resolve their cases instead of visiting an SSA field office.
E-Verify revised the SSA and Dual TNC Further Action Notices to include guidance informing employees that they may contact DHS to resolve their SSA TNC due to a citizenship mismatch. If DHS is able to resolve the TNC, employees will not need to visit an SSA field office.
These updates apply to cases created on the E-Verify website and in web services.
USCIS May Re-Open H-1B Petitions Denied Under Three Rescinded Policy Memos
On March 12, 2021, USCIS announced it may reopen and/or reconsider H-1B petitions denied based on three rescinded policy memos. USCIS will use its discretion to accept motions to reopen that are filed more than 30 days after the denial, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and if the denial was based on policies in the following rescinded H-1B memoranda:
HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and
PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.
PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.
A petitioner may request that USCIS reopen and/or reconsider H-1B petitions that received adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. USCIS also has discretion to accept and consider untimely motions under certain circumstances, as allowed by regulation and form instructions.
Petitioners who received a denial for an H-1B petition based on the above listed rescinded policy memoranda should consider whether they have sufficient time in the validity period requested on the previously filed H-1B petition and labor condition application. Additionally, USCIS recently extended COVID-19 related accommodations that affect the deadlines for filing motions and appeals through March 31, 2021.
H-1B Lottery Reminder
As a reminder, Employers seeking to file H-1B cap-subject petitions for Fiscal Year 2022 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS has opened an initial registration period from March 9 through noon ET on March 25, 2021. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
Through H-1B sponsorship, U.S. Employers can employ qualified noncitizen in Specialty Occupations—jobs that require at least a bachelor’s degree or the equivalent in a specialty. Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS Announces Flexibilities for Certain Applicants Filing Form I-765 for OPT
On February 26, 2021, USCIS announced flexibilities for certain F-1 students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021.
USCIS has experienced delays at certain lockboxes in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students. USCIS notes that these delays are a result of COVID-19 restrictions, an increase in filings of certain benefit requests, postal service volume and delays, and other external factors. USCIS is extending the following flexibilities:
14-month OPT Period Flexibilities
F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period. To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.
As of February 26, 2021, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) from their school on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.
F-1 students requesting post-completion OPT who receive an approval of Form I-765 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 EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.
Refiling Following Rejection
Applicants for OPT must file the Form I-765 during certain timeframes. However, due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.
USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:
The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and
USCIS subsequently rejected it.
Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.
Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from the DSO, as long as they originally submitted an application for post-completion OPT within 30 days of the DSO’s recommendation or an application for STEM OPT within 60 days of the DSO’s recommendation as required by the regulations.
Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.
Missing or Deficient Signatures
Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency. Applicants filing Form I-765 are encouraged to review the form instructions to ensure their application is complete before filing it.
Restrictions on Travel by Land to Canada and Mexico
On February 22, 2021, the Secretary of Homeland Security announced continuation of land travel restrictions from Mexico and Canada into the United States at land ports of entry along the United States-Mexico border. Such travel will be limited to “essential travel”. These restrictions remain in effect until 11:59 p.m. Eastern Daylight Time (EDT) on March 21, 2021.
The guidelines for what qualifies as essential travel issued by the Dept. of Homeland Security can be found in the Federal Register Notice issued on February 23, 2021. Any travel for tourism purposes is not considered essential.
H-1B visa ban in place until 3/31
Although President Biden rescinded Presidential Proclamation 10014 (suspending the entry to the United States of certain immigrant visa applicants) on February 24, 2021, Presidential Proclamation 10052, which suspends the entry of certain nonimmigrant visa applications, remains in effect until at least March 31, 2021. The suspensions in Presidential Proclamation 10052 applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas. DOS updated its guidance related to National Interest Exemptions for individuals subject to PP 10052, although the eligibility requirements do not appear to have changed.
Immigrant visa ban lifted
On February 24, 2021, President Biden rescinded Presidential Proclamation 10014 which prohibited the entry of certain immigrants into the United States due to possible harm to economic interests due to the COVID-19 Pandemic. Although the immigrant visa ban has been revoked, Presidential Proclamation 10052 suspending the entry of nonimmigrant workers for the same reasons remains in effect.
The Department of State provided instructions to visa applicants who were previously subject to a ban on entry pursuant to PP 10014.