Designation of Temporary Protected Status for Haitians
On July 30, 2021, the Department of Homeland Security (DHS) posted an unpublished notice in the Federal Register to designate Haiti for Temporary Protected Status (TPS) for 18 months effective the date of publication in the Federal Register, through February 3, 2023. This includes approximately 55,000 current TPS Haiti beneficiaries, whose TPS-related documentation is automatically extended at least through October 4, 2021, in compliance with court orders. These individuals must file a new application for TPS under this designation to ensure they retain their status.
The new designation of Haiti for TPS also enables an estimated 100,000 additional individuals who have been continuously residing in the United States since July 29, 2021, to file initial applications to obtain TPS. In light of recent events in Haiti, including the July assassination of President Jovenel Moïse, Secretary of Homeland Security Mayorkas modified the cut-off date for eligibility from what was previously announced to now be July 29, 2021. Individuals who attempt to travel to the U.S. after July 29, 2021, will not be eligible for TPS and will be subject to expulsion or removal.
Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from August 3, 2021, through February 3, 2023. TPS applicants are eligible to file Form I-821 online. When filing a TPS application, applicants can also request an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization, with their Form I-821. Applicants may also submit Form I-765 online.
Rescheduling Biometrics Appointments
U.S. Citizenship and Immigration Services (USCIS) announced that biometric services appointments scheduled at a USCIS Application Support Center may only be rescheduled by calling the USCIS Contact Center (800-375-5283). Applicants must establish good cause for rescheduling and must call before the date and time of their original appointment to reschedule. If an applicant fails to call before the scheduled appointment or fails to establish good cause, USCIS may consider the application, petition, or request abandoned and, as a result, it may be denied. More information about preparing for your biometrics appointment can be found on the USCIS website.
Federal District Court Rules Against DACA Program
On July 16, 2021, the U.S. District Court for the Southern District of Texas declared the DACA program “illegal” and issued a permanent injunction prohibiting the government’s continued administration of DACA and its reimplementation as the program does not comply with the Administrative Procedure Act (APA). However, the Court temporarily stayed its order vacating the DACA memorandum and its injunction with regards to individuals who obtained DACA on or before July 16, 2021.
The Department of Homeland Security (DHS) will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization. DHS will continue to grant or deny renewal DACA requests, according to existing policy.
Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about the recent DACA ruling.
BIA decision on Simple Possession: Matter of Moradel
The Board of Immigration Appeals announced its decision on the Matter of Jorge Moradel on June 23, 2021. An Immigration Judge previously found that the responded, Mr. Moradel, was ineligible for a waiver of inadmissibility, and therefore ineligible for adjustment of status, based on a single offense of simple possession of 30 grams or less of marijuana. Mr. Moradel had previously been granted classification as a Special Immigrant Juvenile.
In December 2017, he was convicted of possession of under 50 grams of marijuana under New Jersey state law, and Mr. Moradel conceded in front of an Immigration Judge that this conviction made him inadmissible as an alien convicted of an offense related to a controlled substance. He attempted to seek relief from removal through adjustment of status, but the Immigration Judge found that his inadmissibility made him ineligible to adjust status. Mr. Moradel asked the judge to wave his inadmissibility under Section 245(a)(2) of the Immigration and Nationality Act, which states that “…the Attorney General may waive other paragraphs of section 212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest.”
The BIA reviewed the scope of the “simple possession” exception and determined that an applicant for adjustment of status with Special Immigrant Juvenile status may, in conjunction with a waiver under section 245(h)(2)(B) of the Immigration and Nationality Act, seek to waive his or her inadmissibility based on a single offense of simple possession of 30 grams or less of marijuana. However, the BIA found that the “simple possession” exception at section 245(h)(2)(B) calls for a circumstance-specific inquiry into the nature of the conduct surrounding an applicant’s simple possession offense. The BIA remanded the case to the Immigration Judge to make a finding about the specific circumstances of Mr. Moradel’s possession offense.
July 2021 Visa Bulletin
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 July 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 may file an application for permanent resident status [Form I-485].
In July, 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 July.
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).
DOL Announces Further Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels
On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, vacating the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 86 FR 3608 (January 14, 2021), and remanding the matter back to the U.S. Department of Labor (DOL). DOL published the Final Rule on January 14, 2021, following district court orders that set aside an October 8, 2020 Interim Final Rule (IFR) (85 FR 63872). The Final Rule amended the Department’s regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis under the PERM, H-1B, H-1B1, or E-3 visa programs. The final rule would have amended the federal regulations to change how DOL computed Level I through Level IV wage rates when using Occupational Employment Statistics (OES) wage data to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify a Labor Condition Application (LCA) that relies on OES wage data. This would have resulted in higher NPWC prevailing wage determinations in each OES-based wage level.
DOL has twice delayed the effective date of the Final Rule (86 FR 13995; 86 FR 26164). In light of these delays and now the June 23, 2021 court order vacating the Final Rule, DOL has announced that the operative version of the regulations will continue to be the version in place on October 7, 2020, prior to the publication of the Final Rule on October 8, 2020.
USCIS Announces It Will Allow Resubmission of Certain FY2021 H-1Bs Rejected or Closed Due to Start Date
On June 23, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it will accept resubmitted fiscal year (FY) 2021 H-1B cap-subject petitions that were rejected or administratively closed solely because the requested start date was after October 1, 2020. USCIS is reconsidering these applications, as the agency has concluded that it is not required to reject or close these petitions based on the requested start date, according to the applicable regulations.
Applicants with FY 2021 petitions that were rejected or administratively closed solely because the petition was based on a registration submitted during the initial registration period, but the petitioner requested a start date after October 1, 2020, the previously filed petition may be resubmitted, with all applicable fees, at the address provided here. Such petitions must be resubmitted before October 1, 2021. If properly resubmitted, USCIS will consider the petition to have been filed on the original receipt date.
Withdrawal of DHS Proposal to Eliminate Duration of Status
U.S. Immigration and Customs Enforcement (ICE) originally proposed modifying the period of authorized stay for certain categories of nonimmigrants traveling to the United States by eliminating the availability of "duration of status" and by providing a maximum period of authorized stay with options for extensions for each applicable visa category. On September 25, 2020, the Department of Homeland Security (DHS) published a proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. If this rule were enacted, individuals in the F, J, and I categories would have been admitted for a fixed period of time with specific expiration dates, and all F, J, and I nonimmigrants who wish to remain in the United States beyond their specifically authorized admission period would need to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP to be admitted at a port of entry (POE).
According to the Spring 2021 Regulatory Agenda, DHS intends to withdraw this proposed rule. Nonimmigrants in F, J, and I categories will continue to be admitted into the United States for the period of time that they are complying with the terms and conditions of their nonimmigrant category (“duration of status”), rather than an admission for a fixed time period with a specific expiration date that would need to be extended with USCIS or by departing the U.S. to be admitted again by CBP.
DHS Extends US/Canada/Mexico Travel Restrictions One More Month
On June 20, 2021, the Department of Homeland Security (DHS) announced that it would be extending pandemic related travel restrictions on non-essential travel at land and ferry crossings with Canada and Mexico through 11:59 PM EST on July 21, 2021, “…while ensuring access for essential trade & travel”.
This continues the travel restrictions that went into place on March 21, 2020, when the U.S., Mexico, and Canada temporarily restricted non-essential travel across the US-Canada land borders. “Essential travel” includes cross-border activities with Canada and Mexico that support health security, trade, commerce, supply security, and other essential activities.
COVID-19 Travel Restrictions and Exceptions as of June 24, 2021
The State Department has continued to announce updates to the current travel restrictions and any exceptions to these restrictions. There are four presidential proclamations that suspend entry into the United States of all noncitizens who were physically present in any of 33 countries listed here during the 14-day period preceding their entry or attempted entry into the United States. They are Presidential Proclamation 9984 (China); Presidential Proclamation 9992 (Iran); Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa); and Presidential Proclamation 10199 (India).
The Proclamations do not apply to:
U.S. citizens;
lawful permanent residents;
spouses and minor children of U.S. citizens or lawful permanent residents;
parents or legal guardians of a U.S. citizen or lawful permanent resident unmarried minor child;
siblings of a U.S. citizen or lawful permanent resident child, provided both are unmarried and under the age of 21;
air and sea crewmembers;
U.S. noncitizen nationals (not applicable to Proclamations 9984 (China) and 9992(Iran));
diplomats;
any noncitizen who is a member of the U.S. Armed Forces and any noncitizen who is a spouse or child of a member of the U.S. Armed Forces;
certain U.S. Government invitees for the purpose of the containment or mitigation of COVID-19; and;
certain travelers whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
The Secretary of State has determined that the entry of the following travelers is in the national interest for purposes of exceptions to all four proclamations. The Secretary may revise these national interest determinations as circumstances warrant.
These three categories of travelers are automatically considered for National Interest Exception (NIE) at the Port of Entry and do not require advance approval of a NIE from an embassy or consulate:
immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel);
fiancé(e)s of U.S. citizens and their dependents (K visas);
Students (F and M visas) as described here;
New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT);
The following categories of travelers may apply for a National Interest Exception (NIE) if subject to one or more of the four proclamations. Travelers who believe their travel is within one of the below categories should consult the website of the nearest embassy or consulate for instructions on applying for an NIE.
certain exchange visitors as detailed within this article;
exchange students and academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories);
new or returning students and academics present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after;
Educational Commission for Foreign Medical Graduates (ECFMG) J visa program participants;
journalists (I visas);
travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains, as outlined at https://www.cisa.gov/critical-infrastructure-sectors;
travelers providing vital support or executive direction for significant economic activity in the United States
pilots and aircrew traveling for training or aircraft pickup, delivery, or maintenance;
those whose purpose of travel falls within one of these categories:
lifesaving medical treatment for the principal applicant and accompanying close family members
public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research)
humanitarian travel, to include those providing care for a U.S. citizen, lawful permanent resident, or other nonimmigrant-in-lawful-status close family member
medical escorts, legal guardians, or other escorts required by an airline or legally required by a foreign medical or law enforcement entity accompanying a U.S. citizen being repatriated to the United States;
national security; and
derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive a National Interest Exception (NIE), or is not otherwise subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.
Temporary workers present in South Africa whose travel is essential to food supply chain (H-2A and certain H-2B visas) are excepted travelers as described in this article.
Travelers present in these 33 countries who believe they have an urgent need for travel to the United States that does not fall under any of the categories described above should consult the website of the nearest embassy or consulate for instructions on applying for an individual NIE.
If the embassy or consulate supports the granting of an individual NIE in a particular case, they will forward their recommendation to the Department of State for consideration.