Consent Order Issued in Class Action Lawsuit Challenging Certain OPT Delays
On July 23, 2021, 7/23/21, the District Court for the Southern District of Ohio Eastern Division issued a consent order in Li v. USCIS, a class action lawsuit challenging the delayed adjudication of applications for Optional Practical Training (OPT). The Consent Order outlines the terms of agreement between the parties, specifically:
For applications for OPT and STEM extensions filed between October 1, 2020, through October 31, 2021, USCIS commits to processing within 120 days. Processing means that the application will be approved, denied or an RFE issued within 120 days.
The interim relief announced on February 26, 2021, continues for all cases filed between October 1, 2020, and October 31, 2021. This includes:
A full 12 months of OPT irrespective of the requirement OPT be completed within 14 months of graduation.
OPT will be granted for the full period recommended by the DSO, irrespective of the time of adjudication
If an EAD has been issued for less than these time periods, USCIS will issue a corrected EAD upon request.
Rejected applications which were originally submitted on time can be resubmitted and will be processed as if received on the original date (the full period of OPT will be granted, but the original I-20 will be accepted without the requirement of a new I-20.
Requests for Evidence will be issued instead of a denial for missing or deficient signatures.
OPT applications can be submitted up to 120 days (instead of 90) before completion of the program until October 31, 2021.
USCIS will provide monthly reports until all cases filed before October 31, 2021, have been adjudicated, to permit the Court and Plaintiff’s counsel to monitor compliance. The Court retains jurisdiction during this time.
The parties agree to negotiate any issues of noncompliance in good faith. If the problems cannot be resolved, the parties may request Court intervention.
USCIS will pay Plaintiff’s counsel $45,000.00
The Consent Order does not constitute an admission of wrongdoing.
Proposal to Eliminate Duration of Status Withdrawn by the Department of Homeland Security
On July 6, 2021, DHS officially withdrew its 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. DHS received over 32,000 comments in the 30-day public comment period following the proposed rule and noted that “more than 99 percent of commenters opposed the proposed rule, with many commenters specifically requesting that DHS withdraw the NPRM.”
Applicants for Change of Status (COS) to F-1 Student No Longer Need to Submit Subsequent Applications to “Bridge the Gap”
On July 20, 2021, USCIS announced that it would no longer require F-1 change of status (COS) applicants to submit subsequent applications for extension or change of nonimmigrant status while the COS application to F-1 is pending with USCIS, provided that the nonimmigrants status is unexpired at the time of filing the initial COS application and the applicant is otherwise eligible for COS. To prevent a gap in status, USCIS will grant the COS to F-1effective the day of the COS approval. If an application is approved more than 30 days before the student’s program start date, the student must ensure that they do not violate their nonimmigrant status during that time.
USCIS is in the process of revising Form I-539 to reflect these changes. However, this guidance is effective immediately.
U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) Reviews Labor Condition Application (LCA) Wage Eligibility When Bona Fide Termination is Not Effectuated
A DOL ALJ discussed when an employer’s LCA obligation to pay its H-1B worker ends when the employer terminates the worker, the employer fails to effectuate the required “bona fide termination”, and the worker finds new employment. The ALJ concluded in Administrator, Wage and Hour Division v. Bitsofcode Software Systems Inc., that the employer’s wage liability continues until the employer “expressly” notifies the H-1B worker of the termination and until the new employer’s H-1B petition is approved (not just filed). Additionally, the ALJ concluded that an employer is liable for wages even if the H-1B worker is outside the US unless the employer can provide evidence that the worker’s international trip was voluntary or for the worker’s convenience.
H-1B Applicants File Motion for Preliminary Injunction in Lawsuit Challenging FY 2022 H-1B Lottery Cap Registration Rules
On July 27, 2021, several hundred H-1B visa applicants filed a motion for preliminary injunction in the U.S. District Court for the District of Columbia alleging that the cap registration rules and regulations that took effect on April 1, 2019 are unlawful on the grounds that DHS was rulemaking outside of its authority when it released the cap registration rules, because the rules prioritize H-1B lottery registrations and ignore the INA’s mandate to allocate H-1B visas by “alien” pursuant to INA §214(g)(1), (3), and (7). The plaintiffs also argue that DHS’ application of cap registration rules is “arbitrary, capricious, an abuse of discretion, and not in accordance with law, because the defendants have failed to examine and have ignored empirical evidence and data indicating that implementation of the FY2022 registration process would lead to fraud, abuse, and the likelihood of a second administration of the lottery.”
Iandoli, Desai, and Cronin P.C. will continue to monitor this lawsuit and provide updates when available.
USCIS Conducts Second Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations
On July 28, 2021, USCIS determined that additional registrations to the FY 2022 numerical allocations for the H-1B Cap were available and selected previously submitted electronic registrations using a random selection process. The petition filing period will begin on August 2, 2021, and close on November 3rd. Individuals selected will have their myUSCIS accounts updated to include a selection notice.
Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about filing the H-1B.
U.S. Land Border Restrictions on Travel from Canada and Mexico Extended Through August 21st
On July 22, 2021, the Secretary of Homeland Security announced that it will continue to temporarily limit the travel of individuals from Canada and Mexico at land ports of entry to “essential travel” until August 21, 2021. “Essential travel” includes:
U.S. citizens and lawful permanent residents returning to the United States;
Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
Individuals traveling to attend educational institutions;
Individuals traveling to work in the United States;
Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
Individuals engaged in official government travel or diplomatic travel
Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
Individuals engaged in military-related travel or operations.
State Department Expands Validity of National Interest Exceptions (NIE) to Regional COVID-19 Travel Bans
On June 29, 2021, the Department of State extended the validity of National Interest Exceptions (NIE) for foreign nationals subject to COVID-19-related travel restrictions. Unless otherwise indicated, existing NIEs will be valid for 12 months from the date of approval and for multiple entries if they are used for the purpose under which they were granted. This extension applies to travelers subject to these proclamations due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, Ireland, and India who currently have approved NIEs or who were granted NIEs in conjunction with a visa application.
Students holding F or M visas, or immigrant or fiancé visas already have been granted a NIE and need not apply for a NIE in advance from a U.S. consulate.
TPS Applicants from Five Designated Countries Can File Initial Applications Online
USCIS announced on July 21, 2021, that TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela, or Yemen, or individuals without nationality who habitually resided in one of those countries can now file Form I-821, Application for Temporary Protected Status, online, if they are applying for the first time. First-time TPS applicants can also concurrently file Form I-821 and Form I-765, Request for Employment Authorization online.
Temporary Protected Status (TPS) for Somalia and Yemen Redesignated and Extended for 18 Months
On July 6, 2021, Secretary of Homeland Security Alejando Mayorkas announced an 18-month extension and re-designation of Yemen for TPS through March 3, 2023. Current beneficiaries re-registering under the extension of TPS for Yemen must re-register in a timely manner during the 60-day registration period that runs from July 9, 2021, through September 7, 2021, to ensure they keep their TPS and work authorization without a gap. Eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from July 9, 2021, through the full length of the re-designation period. Applicants are also eligible to apply for TPS-related Employment Authorization (EAD) and for travel authorization.
On July 19, 2021, Secretary Mayorkas announced an 18-month extension and redesignation of Somalia for TPS for 18 months through March 17, 2023. Current beneficiaries re-registering under the extension of TPS for Somalia must do so in a timely manner during the 60-day registration period that will be announced in the Federal Register notice, to ensure they keep their TPS and work authorization without a gap. Eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that will run from the publication date of the Federal Register notice, through the full length of the re-designation period. Applicants are also eligible to apply for TPS-related Employment Authorization (EAD) and for travel authorization.