Business Immigration in a Minute by Honigman LLP
- On March 2, 2021, the Secretary of State rescinded the previous national interest determination regarding categories of travelers eligible for National Interest Exceptions (“NIEs”) under President Biden’s proclamation continuing the suspension of entry of particular travelers from the Schengen Area, the United Kingdom, and the Republic of Ireland. The rescinded national interest determination covered certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents. The Secretary of State also made a new national interest determination providing NIE eligibility for certain travelers from the areas listed above who seek to provide vital support for critical infrastructure in the United States. No previously-issued visas or NIEs under the rescinded national interest determination will be revoked due to this new policy.
- Effective February 26, 2021, United States Citizenship and Immigration Services (“USCIS”) announced flexibilities for F-1 students affected by USCIS delays in issuing receipt notices for Form I-765, Application for Employment Authorization. F-1 students whose I-765 applications for Optional Practical Training (“OPT”) were received between October 1, 2020 and May 1, 2021 may complete their 12-month practical training period within 14 months of the date of their Form I-765 approval, rather than 14 months from the date of their program completion. F-1 students who filed Form I-765 between October 1, 2020 and May 1, 2021 also have the option to refile Form I-765 after a rejection due to the USCIS delays. Further, USCIS will issue a Request for Evidence, rather than a denial, for F-1 students who filed Form I-765 with a missing or deficient signature between October 1, 2020 and May 1, 2021.
- As a reminder, USCIS will begin accepting FY2022 cap-subject H-1B registrations tomorrow, March 9, 2021 at 12:00 PM EST. The registration window will run through March 25, 2021 at 12:00 PM EST. Employers seeking to sponsor employees for cap-subject H-1B status must file, or have their authorized representatives file, an electronic registration on behalf of each employee through their myUSCIS account during the 17-day window. USCIS expects to receive a very large number of online registrations during this period, so technical slowdowns on the website are possible. USCIS will notify employers and their authorized representatives of selected registrations by March 31, 2021.
- The Department of Homeland Security (“DHS”) is accepting public comments regarding the USCIS final rule delaying the effective date of the January 2021 final rule entitled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions.” The January 2021 rule was originally set to become effective on March 9, 2021 and is now delayed until December 31, 2021. Comments regarding the delay of the effective date will be accepted until March 10, 2021.
- Lengthy USCIS delays in issuing receipt notices for form types across the spectrum have raised concerns on how employers can verify employment authorization for I-9 purposes for employees who have not yet received a receipt notice. In certain situations, including STEM OPT extensions and particular I-129 extensions, alternate documents are acceptable in lieu of a USCIS receipt notice under the Form I-9 requirements and employers must comply with anti-discrimination provisions by allowing the employee to choose the documents to present for I-9 purposes. These scenarios are complex and must be evaluated on a case-by-case basis, so employers should review the M-274 Employer Handbook and speak with an attorney to discuss the specific facts and risks of each case.
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