March 15, 2021 Newsletter Powered By ABIL
DHS Rescinds Public Charge Rule, Withdraws Appeals of
Injunctions Blocking It
The Department of Homeland Security (DHS) rescinded regulations
resulting from a final rule issued in August 2019 that was vacated
by a federal district court. Under the now-rescinded rule, the
government could deny applications for green cards, temporary
nonimmigrant status, and naturalization if the government found
they relied on—or were at risk of relying on—public
benefits. The Biden administration also withdrew the federal
government’s appeals of injunctions blocking the DHS public
charge rule. However, 11 Republican-led states said that they plan
to ask courts to continue the litigation.
USCIS will issue updated guidance on affected forms. In the
interim, USCIS said it will not reject any Form I-485 based on the
inclusion or exclusion of Form I-944, and will not reject Forms
I-129, I-129CW, I-539, or I-539A based on whether the public
benefits questions (Forms I-129 (Part 6), I-129CW (Part 6), I-539
(Part 5), and I-539A (Part 3)) have been completed or left blank.
Those issued Requests For Evidence (RFEs) and Notices of Intent to
Deny (NOIDs) will not need to submit information or documents
solely as required by the public charge rule. However, all other
requests raised in the RFE/NOID must be answered.
Details:
- “DHS Secretary Statement on the2019 Public Charge Rule,” USCIS, Mar. 9, 2021,
https://www.uscis.gov/news/news-releases/dhs-secretary-statement-on-the-2019-public-charge-rule
- Final Rule: Inadmissibility on PublicCharge Grounds; Implementation of Vacatur, https://bit.ly/3cuVnJG
· USCIS guidance,
https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge
· Joint Stipulation to Dismiss, DHS v. State of New York,
https://bit.ly/3cspEsn
- “States Seek to Take OverDefense of ‘Public Charge’ Rule,” Reuters, Mar. 11,
2021,
https://www.reuters.com/article/immigration-publiccharge/states-seek-to-take-over-defense-of-public-charge-rule-idUSL1N2L93DH
State Dept. Releases Guidance for Those Previously
Refused Visas Under Travel Bans
On March 10, 2021, the Department of State issued guidance in
response to President Biden’s signing of two proclamations on
January 20, 2021, that ended travel bans on certain nationals,
based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya,
Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela,
and Yemen.
Following the Department’s review, eligible immigrant visa
applicants whose entry was refused previously under the travel bans
and who did not qualify for waivers before January 20, 2020, may
submit new visa applications. Those whose entry was refused under
the bans and were determined not to qualify for a waiver on or
after January 20, 2020, may request their local embassy or
consulate to reconsider their cases within one year of the date of
waiver refusal without submitting a new application or fee.
Nonimmigrant visa applicants whose entry was refused previously
due to the travel bans and who did not qualify for waivers may
submit new visa applications.
The Department can immediately process visa applications for
eligible individuals from the affected countries. However, local
U.S. embassies or consulates may not be able to schedule all
affected applicants for visa interviews immediately due to
COVID-19-related restrictions.
Applicants should consult the website of their nearest U.S.
embassy or consulate to determine if their cases qualify for
expedited processing.
Details:
- Rescission of PresidentialProclamations 9645 and 9983, Dept. of State, Mar. 10, 2021,
https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html
USCIS May Reopen H-1B Petitions Denied Under Three
Rescinded Policy Memos
U.S. Citizenship and Immigration Services (USCIS) announced on
March 12, 2021, that it may reopen and/or reconsider adverse H-1B
decisions on Form I-129, Petition for a Nonimmigrant Worker, that
were made based on three rescinded policy memoranda. USCIS said it
“will generally use its discretion to accept a motion to
reopen filed more than 30 days after the decision, if filed before
the end of the validity period requested on the petition or labor
condition application, whichever is earlier, and the decision was
based on one or more policies in the rescinded H-1B memoranda
below.” The rescinded memos include:
- “Determining Employer-EmployeeRelationship for Adjudication of H-1B Petitions, Including
Third-Party Site Placements (Reference AFM Chapter
31.3(g)(16)),” HQ 70/6.2.8 [AD 10-24)] (Jan. 8, 2010)
- “Contracts and ItinerariesRequirements for H-1B Petitions Involving Third-Party
Worksites,” PM-602-0157 (Feb. 22, 2018)
- “Rescission of the December 22,2000 ‘Guidance memo on H1B computer related
positions’,” PM-602-0142 (Mar. 31, 2017)
USCIS made the rescissions in memoranda issued on June 17, 2020,
and on February 3, 2021.
Details:
- “USCIS May Reopen H-1B PetitionsDenied Under Three Rescinded Policy Memos,” USCIS, Mar. 12,
2021,
https://www.uscis.gov/news/alerts/uscis-may-reopen-h-1b-petitions-denied-under-three-rescinded-policy-memos
- USCIS June 17, 2020, memorandum,PM-602-0114,
https://www.uscis.gov/sites/default/files/document/memos/PM-602-0114_ITServeMemo.pdf
- USCIS February 3, 2021, memorandum,PM-602-0142.1,
https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf
ABIL Asks for Withdrawal of H-1B Lottery Rule
Prioritizing Wages; DHS Delays Effective Date Until May
14
The Alliance of Business Immigration Lawyers (ABIL) formally
submitted a comment asking the Department of Homeland Security
(DHS) to withdraw its final rule prioritizing wages in adjudicating
H-1B applications.
ABIL said the final rule “would unlawfully and
unjustifiably give preference to workers who earn higher wages,
despite the fact that these wages are drawn from limited federal
data sources” that are “not designed for application to
the H-1B visa program, and bear no relation to the value a highly
skilled worker adds to the United States.” ABIL believes that
because of the wide variety of occupational categories into which
H-1B beneficiaries may fall, the use of wage data as a proxy for
high skills and qualifications “will not accomplish the
outcomes DHS desires” and instead “will unfairly
discriminate against and burden law-abiding employers,”
particularly small and medium-size businesses that will find the
H-1B program unaffordable as a result.
ABIL also warned that the final rule is likely to “cause
more work to be commissioned offshore” and thus undermine
opportunities for U.S. workers along with the Biden
administration’s desire that more work be performed in the
United States.
On March 12, 2021, DHS delayed the effective date of the wage
rule until May 14, 2021. DHS said the 60-day delay would allow the
agency to “review any questions of fact, law, or
policy.”
Details:
- Comment Submitted by Alliance ofBusiness Immigration Lawyers, Mar. 10, 2021,
https://www.regulations.gov/comment/USCIS-2020-0019-1279
- Notice delaying effective date offinal rule, DHS,
https://www.govinfo.gov/content/pkg/FR-2021-03-12/pdf/2021-05269.pdf
Lawsuit Challenges USCIS Rejections of H-1B Petitions
Filed After October 1
The American Immigration Council (AIC) sued on March 11, 2021,
in federal court on behalf of seven U.S. employers whose H-1B
petitions were rejected. The lawsuit challenges U.S. Citizenship
and Immigration Services’ (USCIS) “arbitrary and
capricious refusal to accept timely and properly filed H-1B
petitions” subject to the annual cap.
AIC said USCIS rejected the petitions filed after October 1
“simply because the H-1B worker’s intended employment
start date—naturally—also fell after October 1.”
Based on this timeline,
AIC said, “USCIS created an absurd choice: foreign workers
needed to start on October 1 (and not a day later), or the U.S.
employer had to misrepresent the intended employment start-date by
‘back-dating’ the petition.” In fact, AIC noted, USCIS
had accepted some with an employment start date after October 1
without issue.
Details:
- “Challenging USCIS’Arbitrary Rejections of Petitions Filed After October 1,”
American Immigration Council,
https://www.americanimmigrationcouncil.org/litigation/challenging-uscis%E2%80%99-arbitrary-rejections-h-1b-petitions-filed-after-october-1
· Complaint, https://bit.ly/30DKhfF
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