Biden Administration Withdraws Proposed H-4 EAD Rescission Rule from OMB Review

The Biden administration withdrew a proposed rule to rescind the H-4 employment authorization document (EAD) program from review by the Office of Management and Budget. This means that about 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) and their employers no longer need to worry about losing their work authorization.

For more information please see: “Proposed H-4 EAD Rule Withdrawn for Review,” National Law Review, https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review

President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order

On January 25, 2021, President Biden issued an executive order, “Ensuring the Future is Made in All of America by All of America’s Workers.” The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders, including “Buy American and Hire American” (Executive Order 13788, April 18, 2017). U.S. Citizenship and Immigration Services used that executive order as a justification to issue several restrictive immigration policy changes.

For more information please see: Biden Executive Order #14005, Jan. 25, 2021, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers

President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info

On January 25, 2021, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.

U.S. citizens and lawful permanent residents are not subject to the proclamations. Exceptions also include foreign diplomats traveling to the United States on A or G visas; air and sea crew traveling to the United States on C, D, or C1/D visas; and others. For the full list of exceptions, refer to the proclamations.

The Department of State also released a listing with descriptions of previous COVID-19-related Presidential Proclamations that remain in force.

For more information please see: “Presidential Proclamations on Novel Coronavirus,” Department of State, Jan. 26, 2021, https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-coronavirus.html

USCIS to Abide by Previous Filing Fee Amounts Under Preliminary Injunction

Some good news, U.S. Citizenship and Immigration Services (USCIS) will continue to abide by previous filing fee amounts because of preliminary injunctions in ILRC v. Wolf and Nw. Immigrant Rts. Project v. USCIS. USCIS said it is complying with the terms of these orders and “is not enforcing the regulatory changes set out in the Final Rule. USCIS will continue to accept the fees that were in place prior to October 2, 2020 and follow the guidance in place prior to October 2, 2020 to adjudicate fee waiver requests.”

For More information please see: Notification of Preliminary Injunction, USCIS, 86 Fed. Reg. 7493, Jan. 29, 2021, https://www.justice.gov/eoir/page/file/1361621/download  

February Visa Bulletin Announces Green Card Projections for the Coming Months

The Department of State’s Visa Bulletin for February 2021 included the following information on final action date projections (potential monthly movement) for employment-based green card categories through May. The bulletin notes that determination of the actual monthly final action dates is subject to fluctuations in applicant demand and other variables affecting processing:

Employment First:
Worldwide: Current
China: Up to six months
India: Up to six months

Employment Second:
Worldwide: Current
China: Up to three weeks 
India: Up to two weeks 

Employment Third:
Worldwide: Current
China: Up to one month
India: Up to three weeks
Mexico: Current
Philippines: Current

Employment Fourth:
Current for most countries
El Salvador, Guatemala, and Honduras: Up to three months
Mexico: Up to one month

Employment Fifth:
Will remain Current for most countries
China: No forward movement
Vietnam: Up to three weeks

Visa Bulletin for February 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-february-2021.html

Judge Rules STEM OPT Program Lawful

The courts rule again in favor of the F-1 OPT program. On January 28, 2021, a U.S. district court judge issued a summary judgment order finding that the STEM OPT (Optional Practical Training for science, technology, engineering, and mathematics students) program is a valid exercise of authority under the Immigration and Nationality Act. This means that both the 12-month OPT and STEM OPT extension programs are lawful. The plaintiff, Washington Alliance of Technology Workers, has appealed.

For more information please see: Memorandum opinion, Washington Alliance of Technology Workers v. DHS, https://bit.ly/2MaCWRv

USCIS Extends Flexibility for Responding to Agency Requests

Understanding that meeting tight deadlines is difficult in a pandemic, U.S. Citizenship and Immigration Services (USCIS) announced on January 28, 2021, that it is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.

Included are Requests for Evidence and Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant. In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 60 calendar days from the issuance of a USCIS decision, and the agency made that decision between March 1, 2020 and March 31, 2021, inclusive.

For more information please see: USCIS alert, https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-3

TPS for Syria Extended, Redesignated

The Department of Homeland Security (DHS) announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians. This enables more than 6,700 eligible Syrian nationals (and individuals without nationality who last resided in Syria) to retain their TPS through September 2022, and allows approximately 1,800 additional individuals to file initial TPS applications.

Current beneficiaries as well as Syrian nationals who entered the United States after August 1, 2016, and are otherwise eligible may register. DHS plans to publish a notice in the Federal Register with instructions for re-registration and employment authorization. The DHS Secretary will make the next decision to extend or terminate the designation for Syria on or before July 31, 2022.

For more information please see: “Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” DHS Press Release, Jan. 29, 2021, https://www.dhs.gov/news/2021/01/29/acting-dhs-secretary-pekoske-extends-temporary-protected-status-syria 

ICE Extends I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibilities in rules related to Form I-9 (Employment Eligibility Verification) compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.

About a year ago, the Department of Homeland Security deferred physical presence requirements associated with the I-9 process. The policy applies only to employers and workplaces operating remotely.

For more information please see: “ICE Announces Extension to I-9 Compliance Flexibility,” ICE, Jan. 27, 2021, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-2

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