New I-90 Receipt Notices Can Serve as Evidence of Status and Work Authorization
U.S. Citizenship and Immigration Services (USCIS) has replaced the sticker that was currently issued to lawful permanent residents to extend the validity of their Form I-551, Permanent Resident Card (“Green Card”). The revised Form I-797 notice will serve as a receipt notice for the Form I-90. The notice will serve as evidence of identity and employment authorization when presented with an expired green card.
DOL Announces Additional Proposed Delay in Effective Date of Final Rule Affecting Wages for H-1B and PERM Workers
The Department of Labor announced a delay to the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, for a period of eighteen months or until November 14, 2022. The DOL has also proposed corresponding delays to the rule’s transition dates. Under the law, an employer must pay an H-1B worker the actual wage or the prevailing wage, whichever is higher. The new rule will change how the DOL applies its four-level wage approach to prevailing wage determinations, resulting in considerably higher wage requirements for H-1B workers and PERM applicants.
AILA submitted a comment to the DOL on April 20, 2021, stating “Prevailing wages should not reflect political priorities or desires. Congress's role is to make or modify laws affecting the country’s approach to immigration preferences, not that of the federal agencies…The Wage Rule continues to be based upon the flawed presumption that the amount a worker is paid, and that element alone, determines the value that worker brings to the United States. To this end, the Wage Rule attempts to increase required wages for foreign national workers well above what science shows the market indicates, thus changing the prevailing wage calculation from a mathematical one to a political one.”
F-1 Students Seeking Optional Practical Training Can Now File Form I-765 Online
USCIS announced on April 12, 2021 that F-1 students seeking optional practical training (OPT) can file Form I-765, Application for Employment Authorization, online if they are filing under the following categories:
(c)(3)(A) Pre-Completion OPT
(c)(3)(B) Post-Completion OPT
(c)(3)(C) 24-Month STEM Extension
Online filing of Form I-765 is restricted solely to F-1 students filing Form I-765 for OPT. Any Form I-765 application that is filed for an ineligible employment category will be denied and the fee retained. Online filing allows students to check the status of their case and receive notices from USCIS online as opposed to waiting for a notice to arrive in the mail. Students must first crate a USCIS online account at myaccount.uscis.gov. The online version of Form I-765 can be found on the USCIS Forms Available to File Online page.
International students are encouraged to check with their international offices regarding the filing of their OPT applications.
SEVP will extend March 2020 Guidance on Distance Learning for the 2021-22 Academic Year
The Student and Exchange Visitor Program (SEVP) will extend the guidance originally issued in March 2020 for the 2021-22 academic year. This guidance enables schools and students to engage in remote learning that exceeds regulatory limits due to the ongoing public health concerns caused by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020 and are otherwise adhering to the terms of their nonimmigrant status.
Active F and M students will be permitted to temporarily count online classes towards a full course of study in excess of previous regulatory limits for the 2021-2022 academic year. Students who were actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside the country can re-enter the United States, even if their school continues to hold virtual classes. New or initial F and M student who were not previously enrolled in a program of study on March 9, 2020 will not be able to enter the U.S. for the 2021-2022 academic year if their academic courses will be solely online.
SEVP-certified schools do not need to submit a procedural plan detailing its alternative procedures for the 2021-2022 academic year if they have previously submitted a plan to SEVP and the school is not making substantive changes. Schools should submit a plan detailing substantive changes to SEVP within 10 business days of the decision to implement the change.
SEVP recently updated its frequently asked questions with information on the application of the March 2020 guidance to the 2021-22 academic year. It will continue to update stakeholders in the academic community through its communication channels, including Broadcast Messages, SEVP field representatives, Study in the States blog posts and social media.
Update on Immigrant Visa Processing at U.S. Consulates
The COVID-19 pandemic continues to affect the ability of embassies and consulates to be able to resume routine visa services. Constraints vary based on local conditions, including lockdowns, travel restrictions, and host country quarantine regulations. These restrictions, in addition to social distancing and other safety measures, have reduced appointment capacity at embassies and consulates, which has created a significant backlog of both immigrant and nonimmigrant visa applications.
The Department of State is using a tiered approach to triage immigrant visa applications based on the category of immigrant visa.
Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government).
Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas.
Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad.
Tier Four: All other immigrant visas, including employment preference and diversity visas.
This system instructs U.S. embassies and consulates to direct their limited resources to the prioritization of immediate relative and fiancé(e) immigrant visa applications. Visa applicants should expect to continue to face delays, particularly those in tiers three and four, but the DOS goal is to prevent the visa backlog from growing and, hopefully, to reduce it over time. Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about an immigrant visa application.
DOS Expands Certain National Interest Exception Eligibilities to All Countries Subject to U.S. Geographic COVID-19 Entry Bans
On April 26, 2021, the Department of State announced that it is expanding certain national interest exception eligibilities to all countries subject to U.S. geographic COVID-19 entry bans. In addition to the national interest determinations already in place, travelers affected by travel bans due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are entering the U.S. to provide vital support for critical infrastructure; journalists; students and certain academics covered by exchange visitor programs, may now qualify for a National Interest Exception (NIE). The DOS will continue to grant NIEs for humanitarian travel, public health, and national security.
Students with valid F-1 and M-1 visas who are entering the U.S. to begin or continue an academic program beginning on August 1, 2021 or later do not need to contact a U.S. consulate to obtain a NIE. They may enter the U.S. no earlier than 30 days before the start of their program of study. Students who require a visa should check the status of visa services at their U.S. consulate and consult with their school’s international office.
DHS Extends Land Border Restrictions between Canada and Mexico through May 21, 2021
CBP issued a notification of the continuation of temporary travel restrictions of non-essential travel to the United States from the Canadian and Mexican borders, which will remain in effect until May 21, 2021. The restriction applies to “non-essential” travel by nonimmigrants or immigrants via land border, rail, and ferry crossing. It does not apply to air travel or sea travel (excluding ferry and pleasure boat travel).
“Essential travel” is determined by Customs & Border Protection, and it includes traveling to attend educational institutions or to work in the United States. U.S. citizens and lawful permanent residents returning to the United States are excluded from this restriction. Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about travel to and from Canada and Mexico.
DHS Announces New Guidance to Limit ICE and CBP Civil Enforcement Actions in or near Courthouse
The Department of Homeland Security announced that federal agents will no longer be permitted to arrest people in or near a courthouse for most immigration violations. Previous policy in effect since 2018 authorized ICE to enter any courthouse to arrest people who were there for reasons unrelated to their immigration status. A civil enforcement action in or near a courthouse may only be taken in limited circumstances, including national security matters and threats to public safety.
“Ensuring that individuals have access to the courts advances the fair administration of justice, promotes safety for crime victims, and helps to guarantee equal protection under the law,” said Secretary Mayorkas. “The expansion of civil immigration arrests at courthouses during the prior administration had a chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement. Today’s guidance is the latest step in our efforts to focus our civil immigration enforcement resources on threats to homeland security and public safety.”
DHS Postpones REAL ID Deadline to May 2023
Secretary of Homeland Security Alejandro Mayorkas announced that the Department of Homeland Security is extending REAL ID requirements to May 3, 2023 as a result of the COVID-19 pandemic. The REAL ID Act establishes minimum security standards for license issuance and prohibits federal agencies from accepting state-issued driver’s licenses and identification cards that do not meet the Act’s minimum standards. The purposes covered by the Act include accessing federal buildings and boarding federally regulated commercial aircraft.
Beginning May 3, 2023, every air traveler 18 years of age and older will need a REAL ID-compliant driver’s license or identification card to board a domestic commercial flight. Other TSA-compliant identification documents such as an active passport will still be acceptable.
USCIS Reinstates Policy Instructing Officers to give Deference to Prior Determinations in Extension Requests
On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance instructing officers to give deference to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts. Deference to prior determinations will not apply where there is a material error or material change in circumstances or eligibility. This guidance affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies.
This guidance largely restores USCIS’s 2004 deference policy, which was rescinded in 2017. This policy directed officers to defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application.
Affording deference to prior approvals involving the same parties promotes effective and fair adjudication of immigration benefits in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.