Monthly Archives: February 2021

The Proclamation on Revoking Proclamation 10014 allows the Department of State to immediately begin reconsideration of those immigrant visa applications that were denied due to the proclamations. The DOS requests that individuals affected by the proclamations wait for instruction from the consulate or embassy processing the visa.

Department of State Instructions for Immigrant Visa Applicants

Not Yet Interviewed:  Immigrant visa applicants who have not yet been interviewed or scheduled for an interview will have their applications processed according to our existing phased resumption of visa services framework.

Previously Refused:  Immigrant visa applicants whose petitions remain valid and who were previously interviewed but refused visas due to P.P. 10014 should wait for instructions from the U.S. embassy or consulate where they were interviewed.  The Department of State will reconsider cases that were previously refused because of P.P. 10014 and will inform applicants if additional information is needed.

Diversity Visa 2020 Applicants:  Those holding diversity visas issued in 2020 that are still valid may seek entry to the United States immediately, despite the visa annotation, “Entry Subject to PP 10014.”  Individuals whose DV-2020 visas have expired may not be issued replacement visas; however, individuals who received diversity visas in 2020 as a result of orders in the court case Gomez v. Trump may travel to the United States on an expired visa as the court ordered the government to treat these visas as though they were issued on the date P.P. 10014 was rescinded. The court did not specify for how long the visas would be considered valid.   Additionally, it may be possible that the court order could be changed or modified in some important respect.  Therefore, applicants wishing to benefit from the order are encouraged to travel as soon as practicable as the order could change.

The Secretary of State has granted a national interest exception for Diversity Visa (DV) applicants for the 2020 fiscal year (DV-2020) who hold a valid immigrant visa and are subject to the geographic COVID-19 Presidential Proclamations.  In addition, diversity visa applicants for DV-2020 who were not issued visas before September 30, 2020 for any reason including P.P. 10014 will not be interviewed, scheduled, or reconsidered for visas, as those applicants were only eligible for issuance of a visa through the end of the 2020 fiscal year, which ended on September 30, 2020.

Diversity Visa 2021 Applicants:  DV applicants for the 2021 fiscal year (DV-2021) should wait to be notified of the scheduling of an interview in accordance with the phased resumption of visa services framework.

Geographic COVID-19 Restrictions

The geographic COVID-19-related P.P.s 9984, 9992, and 10143, which suspend entry into the United States of foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa, in the 14-day period before seeking entry into the United States, remain in effect.  Immigrant visa applicants who are spouses or children of U.S. citizens (IR/CR-1, IR/CR-2, IR/IH-3, and IR/IH-4), as well as spouses and minor children of LPRs (F2A), are excepted from the geographic COVID-19 P.P.s.  All other immigrant visa applicants and K fiancé nonimmigrant visa applicants remain subject to these geographic COVID-19 P.P.s., unless another exception applies.

Resumption of All Visa Services

We are resuming routine visa services on a post-by-post basis, following State Department guidance to safely return our workforce and the public to Department facilities.  U.S. embassies and consulates continue to provide emergency and mission-critical visa services.  As post-specific conditions improve, our embassies and consulates will begin providing additional services and will resume routine visa services completely as soon as it is safe to do so for the public and for our workforce.  Applicants should check the website of their nearest U.S. embassy or consulate for updates on what visa services are currently available.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.

USCIS announced that it would be setting aside the 2020 civics test in favor of the 2008 version test for naturalization beginning on March 1, 2021.

From USCIS: 

On Dec. 1, 2020, USCIS implemented a revised version of the civics test for naturalization (2020 civics test). Due to recent policy changes, some applicants required to take the 2020 civics test may now have a choice to take the 2020 test or the 2008 civics test. Please note that beginning on April 19, 2021, USCIS will only offer the 2008 civics test at the initial interview appointment regardless of filing date.

USCIS determined the 2020 civics test development process, content, testing procedures, and implementation schedule may inadvertently create potential barriers to the naturalization process. This action is consistent with the framework of the Executive Order on Restoring Faith in Our Legal Immigration Systems, which directs a comprehensive review of the naturalization process to eliminate barriers and make the process more accessible to all eligible individuals.

The 2008 civics test was thoroughly developed over a multi-year period with the input of more than 150 organizations, which included English as a second language experts, educators, and historians, and was piloted before its implementation. USCIS aspires to make the process as accessible as possible as directed by President Biden’s request to review the process thoroughly.

The civics test is administered to applicants who apply for U.S. citizenship through naturalization and is one of the statutory requirements for naturalizing. Applicants must demonstrate a knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. The decision to naturalize demonstrates an investment in and commitment to this country. USCIS is committed to administering a test that is an instrument of civic learning and fosters civic integration as part of the test preparation process.

Applicants who filed their application for naturalization on or after Dec. 1, 2020, and before March 1, 2021, likely have been studying for the 2020 test; therefore, USCIS will give these applicants the option to take either the 2020 civics test or the 2008 civics test. There will be a transition period where both tests are being offered. The 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test.

• If you are taking the 2020 civics test, find study materials on the Study for the Test (2020 version) page.
• If you are taking the 2008 civics test, find study materials on the Study for the Test (2008 version) page.

To help determine if you are required to take the 2008 civics test, or if you can choose between the 2008 and 2020 civics test, follow these two steps:

1)    Check your filing date, also known as a “received date” on your N-400 notice at the top left corner (see sample notice to the right).
2)    Once you have your received date, go to the table below and find which scenario applies to you based on your filing and initial examination dates

Which civics test will I take?

Frequently Asked Questions

Starting Feb. 24, 2021, petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting a change or extension of status to E-3 classification have the option to request premium processing service for their petition. 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 or, in the case of an individual already in the U.S., by filing Form I-129 with USCIS. To qualify for the E-3 classification, you must demonstrate, among other things, that you:

• Are a national of Australia;
• Have a legitimate offer of employment in the United States;
• Possess the necessary academic or other qualifying credentials; and
• Will fill a position that qualifies as a specialty occupation.

The USCIS premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days.

The USCIS premium processing page was updated to state that the fee for expedited processing is $2,500 if you are filing Form I-129 requesting E-1, E-2, E-3 H-1B, H-3, L (including blanket L-1), O, P, Q, or TN nonimmigrant classification. 

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.

Students need to be aware of the current state of Student and Exchange Visitor Program (SEVP) guidance during the pandemic, various COVID-19-related travel bans, as well as the operating statuses of embassies and consulates around the world. These developments dictate the timing of when to secure F and M status and the ability of students to remain in compliance with U.S. immigration laws.

Update: ICE Continues March 2020 Guidance for the 2021-2022 Academic Year

What Is the Current SEVP Guidance?

Since the pandemic’s onset, SEVP has issued guidance through a dizzying array of Broadcast Messages and FAQ updates. Fortunately, litigation from various academic institutions has shaped the more flexible guidance we have today, though challenges and gray areas remain. Here are the most relevant highlights:

• Active continuing F and M students may temporarily count online classes toward a full course of study. Typically, regulations limit F students to a maximum of one course/three credits of online classes per semester and prohibit M students from taking online classes. The temporary exception applies to students who were actively enrolled at a U.S. school on March 9, 2020; are in Active SEVIS status; and who are enrolled in classes that are entirely online, regardless of whether they are inside or outside the United States. Those outside the United States are likely able to reenter with a valid visa or remain in Active SEVIS status abroad as long as they are engaged in a full course of online study. The exception also applies to students who have remained in the United States in Active status and are starting a new program of study (i.e. transfer and/or change of educational level).
• F and M students in Initial status after March 9, 2020, who are currently outside the United States will not be able to enter the United States to enroll in a U.S. school for courses of study that are fully online. This still allows for a hybrid option, where the program of study has both in-person and online components, even if the online classes are in excess of the regulatory limits. It also allows students pursuing an in-person or hybrid course of study to remain in the United States, even if their institution later switches to fully online instruction.
• Students on CPT and OPT, including STEM OPT, may work remotely while inside or outside the United States when appropriate and permitted by the employer. The employer must also be able to assess student engagement using electronic means or have an office outside the United States. Additionally, SEVP will now consider students as appropriately engaged in OPT when they are working fewer than 20 hours per week within their respective OPT opportunities.

Students should check with school officials to ensure they have submitted a procedural change plan to SEVP detailing the school’s alternative procedures (such as fully online instruction or a hybrid program). Students should be sure to abide by the institution’s pandemic-related alternative procedures while in place, as well as the school’s policies once it resumes normal operations. Students continuing their studies outside the United States should confirm they have the following language in the remarks field of their Form I-20: “Outside the United States due to COVID-19.”

What Are Some Problems with the Current SEVP Guidance?

• SEVP has not addressed a scenario in which individuals who are physically present in the United States request a change of status to F or M. If a student was not actively enrolled at a U.S. school as of March 9, 2020, it is unclear whether they can engage in a course of study that is 100 percent online.
• For students currently on OPT or STEM OPT, the 90-day/150-day allowable periods of unemployment continue to remain in effect. This is particularly relevant given COVID-19’s impact on the job market.
• Students in their final semester who are continuing their studies abroad because they are unable to secure a visa or flight to the United States may lose the opportunity to apply for post-completion OPT. The student must file Form I-765 up to 90 days before, but no later than 60 days after, the program end date. However, Form I-765 cannot be filed while the student is abroad.
• If a new/initial student is unable to secure a visa or a timely flight to the United States, the school must defer attendance in SEVIS. In such cases, the student may still engage in a course of study from abroad, but not in active F status. This would affect the student’s ability to accrue one full academic year for purposes of CPT and pre-completion OPT.

What Are the Current Travel Difficulties Facing Students, and What Are Some Possible Solutions?

The Department of State has labeled student visas a “high priority.” In their sole discretion, some embassies or consulates may consider emergency visa appointment requests. This means it may be possible for students who have urgent travel needs to obtain approval.

Students should consult the website of the embassy or consulate through which they intend to process their visa. Additionally, DOS has temporarily expanded the authority of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification, which may help students who need to renew F or M visas.

Finally, several pandemic-related Presidential Proclamations bar U.S. entry of individuals physically present in China, Iran, Brazil, the 26 nations of the Schengen Area, United Kingdom, Ireland, and South Africa within 14 days preceding their attempted entry. Students restricted by proclamations impacting the Schengen Area, United Kingdom, and Ireland will automatically be considered for a National Interest Exception to these proclamations if they are otherwise qualified for an F-1 or M-1 visa. As of January 26, 2021, all air passengers arriving to the United States, regardless of immigration status, are required to test negative for the coronavirus, via PCR or antigen test, no more than 72 hours before departure.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.

The USCIS Public Engagement Division released an update on receipt notices for EAD applications made by F-1 students over the past few months. The agency requests that students wait 8 weeks to inquire about a receipt notice. The full announcement is below.

USCIS Update Regarding Applicants Filing Form I-765 for OPT

USCIS continues to experience delays at certain lockboxes in issuing receipt notices for Form I-765, Application for Employment Authorization, based on eligibility categories described in 8 C.F.R. 274a.12(c)(3), relating to optional practical training (OPT) for F-1 students. While we have made progress in addressing the delays, we would like to provide additional clarifications and reminders:

• These delays will not affect the received date. All submissions are date stamped upon arrival at the Lockbox, so regardless of when the Lockbox processes your application, your received date will reflect the date it actually arrived at the Lockbox.
• We will not reject applications solely because they were filed at the lockbox address in use prior to the change to the filing address instructions announced on Jan. 8, 2021. We encourage applicants filing Form I-765 to always check the form instructions on our website for the most up-to-date filing instructions.
• If you have timely filed Form I-765 based on STEM OPT, and your post-completion OPT period expires while the application is pending, we will automatically extend the employment authorization for 180 days. The Form I-20 endorsed by the designated school official recommending a STEM extension together with the expired Form I-766 employment authorization document (EAD) issued for post-completion OPT establishes identity and work authorization for purposes of documenting employment authorization.

What USCIS Is Doing

We are aware of the impact the delays have had on nonimmigrant students. The USCIS lockbox workforce continues to work extra hours and redistribute its workload, while maintaining COVID-19 protection measures, in order to minimize delays. Once we open and process your application, we print and mail the receipt notice. We are working to prevent receipting delays from resulting in a payment that is past its validity date.

The USCIS Service Centers are aware of the impact of these delays and will work as quickly as possible to process Form I-765 applications for OPT.

What You Can Do

If you have already filed your application and are waiting for your receipt notice, we appreciate your patience. Currently, we recommend that you wait eight weeks before contacting us to inquire about your case status. We are working as quickly as possible to complete the intake of all filings. As a reminder, you can create a free USCIS online account, check the status of your case, and our current processing times from your mobile device, anywhere, anytime using our case status online tool.

USCIS will continue to monitor this situation and will announce any additional changes on our website, www.uscis.gov.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.

When To Request Assistance: USCIS Ombudsman Alert on Receipt Notice Delays

The CIS Ombudsman is reporting that USCIS is taking as long as 8 to 9 weeks to issue receipt notices for some applications and petitions. USCIS states that it is unable to expedite the issuance. The Ombudsman’s office will continue to assist individuals who have not received a receipt 90 days after the actual receipt date at USCIS. If you have not received a receipt notice after 60 days, you should first contact USCIS. If the agency does not respond to your inquiry within 30 days, you may submit a separate request for case assistance to the CIS Ombudsman.

The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) assists individuals and employers in resolving case problems with USCIS. According to the DHS case assistance page, the CIS Ombudsman “reviews individual cases to provide assistance by examining facts, reviewing relevant data systems, and analyzing applicable laws, regulations, policies and procedures.” The page also describes the office as a “last resort” and requests that you go to USCIS first before submitting an Ombudsman request. 

The full notice is below.

Alert: USCIS Receipt Notice Delays

The CIS Ombudsman is issuing this alert to notify individuals and employers of USCIS delays in issuing receipt notices from the agency’s Lockbox intake facilities and the actions the CIS Ombudsman is taking to address these delays.

Based on requests for case assistance submitted to our office, USCIS is taking as long as 8 to 9 weeks to issue receipt notices for some applications and petitions.

In response to our attempts to work with USCIS to secure receipt notices, the agency has responded that it is unable to expedite their issuance. We will continue to try to assist individuals who have not received a Notice of Action (Form I-797C) 90 days after their application/petition was received at USCIS. Applicants who have not received a receipt notice within 60 days of filing should first contact USCIS. If USCIS does not respond to your inquiry within 30 days, you may submit a request for case assistance to the CIS Ombudsman.

The CIS Ombudsman is working with USCIS to find solutions to mitigate the harm to applicants impacted by the delays in issuing receipt notices.

USCIS Lockbox Updates

Due to the COVID-19 pandemic and other factors, USCIS is experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility. The information below explains the current state of lockbox operations and the issues affecting receipt notices.

Current Situation

As a result of COVID-19 restrictions, an increase in filings, current postal service volume, and other external factors, you may experience a delay of four to six weeks in receiving your receipt notice after properly filing an application or petition with a USCIS lockbox. These delays will not affect the receipt date which is determined pursuant to 8 C.F.R. 103.2(a)(7). Delays may vary among form types and lockbox locations. In some cases, you may experience significant delays if you filed a non-family based Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-765, Application for Employment Authorization, based on eligibility categories described in 8 C.F.R. 274a.12(c)(3), relating to F-1 students.

The health and safety of our workforce remains a top priority. Across all USCIS offices, including lockbox facilities, the agency has taken necessary measures such as increased social distancing and frequent cleaning in accordance with the Centers for Disease Control guidance to mitigate the spread of COVID-19. Some lockbox operations in locations that have been severely impacted by COVID-19 must adhere to stricter local guidelines.

What USCIS Is Doing

The USCIS lockbox workforce is working extra hours and redistributing its workload in order to minimize delays. Once we open and process your application, we print and mail the receipt notice. We do not anticipate any receipting delays that would result in a payment that is past its validity date.

For more information, please read USCIS’ announcement.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.

The Biden Administration appears to be prioritizing immigration reform, with a proposed comprehensive immigration bill, a series of executive orders, and quick action to address some of the Trump Administration’s policies. Below we have summarized the updates that have occurred over the first weeks of the Biden Administration. How do these actions affect your immigration journey? Make sure you tune in every Wednesday for a live webinar with Attorney Lakshmi Challa to craft your immigration strategy!

From the White House

Ending Discriminatory Bans on Entry to the United States

On his first day in office, President Biden issued  a proclamation titled Ending Discriminatory Bans on Entry to the United States, that revoked Executive Order 13780, Proclamation 9645 (Muslim Travel Ban 3.0), Proclamation 9723 (Removing Chad from Muslim Ban), and Proclamation 9983 (Africa Travel Ban). The Proclamation stated that the Secretary of State will direct all embassies and consulates to resume visa processing, consistent with applicable law and visa processing procedures, including any related to COVID-19.

Department of State issued guidance on January 22, 2021 stating that it will undertake a review to ensure that immigrant visa (IV) applicants denied on the basis of Proclamations 9645 or 9983 will have their cases reconsidered. The review will consider reopening cases, whether additional fees are necessary, and develop a plan to expedite these cases. 

February 2, 2021 Executive Orders on Immigration

While additional immigration executive orders were initially planned for January 29, 2021, the orders were delayed until the Senate could confirm new Department of Homeland Security Secretary, Alejandro Mayorkas. After his confirmation on Tuesday, February 2, 2021, President Biden signed three executive orders to address major immigration challenges.

“In keeping with our commitment to protect the American people, our homeland, and our values, the U.S. Department of Homeland Security welcomes the President’s action to ensure that our immigration system represents the empathy of the American people.”

-DHS Secretary Alejandro Mayorkas

Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans

This executive order focuses on welcoming new Americans and encouraging naturalization.

• Encourage strategies to promote integration, inclusion, and citizenship
• Welcome and support immigrants, including refugees
• Identify and remove barriers to immigration benefits and fair, efficient adjudications
• Rescind rules that fail to promote access to the legal immigration system
  • Increased fee rule mentioned as an example
• Immediate review of public charge rule
• Promote naturalization and reduce processing times and barriers
• Review of process with emphasis on N-400, fingerprinting, background and security checks, interviews, civics, English language tests, oath of allegiance
• Make process more accessible by potentially reducing naturalization fee and fee waiver process
• Review policies and practices regarding denaturalization and passport revocation
• Revokes May 2019 memo: Enforcing the Legal Responsibilities of Sponsors of Aliens

Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border

• Manage migration throughout North and Central America
• Address root causes of migration
• Expand Central and North American countries’ asylum systems and resettlement capacity
• Increase opportunities for populations to seek protection closer to home
• Enhance lawful pathways for migration
• Restore our own asylum system
• Promote human rights, labor rights, combat corruption, violence, economic insecurity
• Emphasis on El Salvador, Guatemala, Honduras

Executive Order on the Establishment of Interagency Task Force on the Reunification of Families

• Creates task force to:
  • Identify all children separated from their families at the U.S. Mexico border since January 20, 2017
  • Facilitate reunification of children with families
  • Consider parole, visas, immigration benefits
  • Evaluate services and support required, including trauma and mental health services
  • Reports on progress
• Final recommendation to ensure the federal government does not repeat policies and practices leading to family separation

“As we undertake this work, it’s critical that Congress build on these executive actions by passing the legislation proposed by President Biden to modernize our immigration system, responsibly manage our border, and create an earned path to citizenship.”

-DHS Secretary Alejandro Mayorkas

President Biden’s Proposed Immigration Reform Plan

Although President Biden introduced his own immigration reform priorities, sources say the White House will let Congress take the lead. Sources also indicated a willingness to progress reform on a segmented basis instead of pushing for a single comprehensive reform bill. The summary of his plan includes:

• Eight-year path to citizenship for undocumented immigrants
  • If they can pass background checks and pay taxes, undocumented individuals may be able to apply for green cards
  • Changes the word “alien” to “noncitizen” in our immigration laws
• Family-based reform to clear backlogs
  • Recapture unused visas
  • Eliminate lengthy wait times
  • Increase per-country visa caps
  • Eliminates 3 and 10-year bars
  • Allows immigrants with approved family-sponsored petitions to join their family in the U.S. on a temporary basis while they wait for green cards to become available
• NO BAN Act Prohibits discrimination based on religion and would increase Diversity Visas available
• Clear employment-based visa backlogs
  • Recapture unused visa
  • Reduce wait times and eliminate per-country visa caps
  • Improve pathway for graduates of U.S. universities to stay in the U.S.
  • Authorizes dependents of H-1B visa holders to work
  • Prevent children from “aging out” of the system
  • Pilot program to stimulate regional economic development
• Improve employment verification process and protect workers from workplace retaliation
• Border security improvements with new screening technologies
  • Identify narcotics and other contraband
  • Scanning technologies for all ports of entry
  • Crack down on criminal organizations
• Aid to Central America to address underlying causes of migration
  • Establish Designated Processing Centers throughout Central America to assist displaced persons
• Improve immigration courts
  • Reduce backlogs
  • Improve case management and technology
• Support asylum seekers and other vulnerable populations
  • Protections for U visa, T visa, VAWA applicants
  • Increases cap from 10,000 to 30,000

Department of Homeland Security (DHS) & USCIS Actions

H-4 EADs

The rule that would have removed H-4 EADs for certain eligible spouses was withdrawn by Biden Administration’s Department of Homeland Security. Eligible H-4 spouses can continue to renew and apply for work authorization.

USCIS Announces Delayed Effective Date for H-1B Wage-Based Selection Rule

USCIS announced that there will be a delay of the effective date for the final rule Modification of Registration Requirements for Petitioners Seeking To File Cap-Subject H-1B Petitions. The final rule was published on January 8, 2021, and was scheduled for implementation on March 9, 2021. The rule plans to change the H-1B cap selection process from a random selection to one based on prevailing wage levels. The rule would prioritize the highest-paid positions and according to USCIS, would “help counter the downward pressure on the wages of U.S. workers that is created by an annual influx of relatively lower-paid, new cap-subject H-1B workers.”

The official notice delaying the effective date will be published on Monday, February 8, 2021. The advance copy notes that the rule will be effective December 31, 2021 since USCIS will not “have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season.” 

Read more: H-1B Cap Registration Selection to Remain Random (For Now)

What’s Next?

Esther Olavarria, deputy director of the White House Domestic Policy Council, and one of the president’s top immigration advisers stated that President Biden plans to sign orders to:

• Rescind proclamation requiring health insurance or demonstrating the ability to pay for healthcare
• Rescind proclamation that prohibited entry of immigrants and nonimmigrants deemed to present a risk to the U.S. labor market (COVID-19 proclamation that was extended by Trump administration through March 31).

There is no predicted timeline for these actions. We expect to see a strong push for Congress to act on the proposed immigration reform bill, but there are a number of subjects on the schedule that may push the timeline out to later in the Biden Administration’s tenure.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.

USCIS announced that there will be a delay of the effective date for the final rule Modification of Registration Requirements for Petitioners Seeking To File Cap-Subject H-1B Petitions. Without modification, the final rule was published on January 8, 2021, after a short comment period that ended in December 2020, and was scheduled for implementation on March 9, 2021. The rule plans to change the H-1B cap selection process from a random selection to one based on prevailing wage levels. The rule would prioritize the highest-paid positions and according to USCIS, would “help counter the downward pressure on the wages of U.S. workers that is created by an annual influx of relatively lower-paid, new cap-subject H-1B workers.”

The official notice delaying the effective date will be published on Monday, February 8, 2021. The advance copy notes that the rule will be effective December 31, 2021 since USCIS will not “have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season.” The notice also emphasizes that all H-1B registrants should be treated under the same registration standards, hence the delay to December in case subsequent registration periods are opened after the initial registration window.

The notice also states DHS leadership will evaluate the role and its policies. DHS will open up public comments on the delay until 30 days after the date of publication in the Federal Register.

What to Expect in FY 2023

Key Provisions of the Wage-Based Selection Rule

While the H-1B cap registration system has historically been a random selection process, the rule would shift to a ranking of registrations based on the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code in the area of intended employment. The top-ranked registrations would begin at OES wage level IV and proceed in descending order.

Wage Considerations

• If the proffered wage falls below OES wage level I because the wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
• After the 65,000 “regular cap” selections are made, the same process would be utilized to meet the advanced-degree exemption.
• If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
• If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
• Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
• The electronic registration form (and the H-1B petition) will be amended to require provision of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.

Registration & Adjudication Updates

• The proposed rule requires that a valid registration must represent a legitimate job offer.
• USCIS may deny the petition if it is determined that the statements on the registration or petition were inaccurate, fraudulent, or misrepresented a material fact.
• A petition also may be denied if it is not based on a valid registration submitted by the petitioner (or its designated representative), or a successor in interest, for the beneficiary named in the petition.
• USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
• USCIS will not deny an amended or new petition solely on the basis of a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.

We will be closely monitoring the challenges to this rule in order to best advise on preparation for next year’s H-1B cap selection process.

Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on Facebook, Twitter, Instagram, YouTube, or LinkedIn. You can also join our Telegram community.