Business Immigration in a Minute by Honigman LLP

  • The most significant development in the past week is the elimination of the burdensome 2019 Public Charge Rule and Form I-944. On March 9, 2021, the Department of Justice (“DOJ”) withdrew its pending appeals regarding the enforcement of the 2019 Public Charge Final Rule in the Supreme Court and two federal appeals courts. As a result of the DOJ’s withdrawals, an Illinois federal court decision striking down the rule in its entirety now stands and the 2019 Public Charge Final Rule is no longer in effect. The Department of Homeland Security (“DHS”) also announced that it will no longer defend the 2019 Public Charge Final Rule after its review of the rule in accordance with President Biden’s executive order calling for the review of all regulations, policies, and guidance that affect legal immigration. Further, United States Citizenship and Immigration Services (“USCIS”) announced that it has immediately stopped applying the 2019 Public Charge Final Rule to all pending applications and petitions and no longer requires the filing of Form I-944 for cases that were subject to the 2019 rule.

  • On March 12, 2021, the Department of Labor (“DOL”) published a final rule that delays the effective date of the Trump Administration rule modifying the computation of prevailing wage levels for H-1Bs from March 15, 2021 to May 14, 2021. For this year’s H-1B cap season, DOL will apply the July 2020 to June 2021 wage data computations to any registration period that takes place before May 14, 2021.

  • DOL updated its processing times for permanent labor certification (“PERM”) applications and prevailing wage requests. As of February 28, 2021, the DOL is adjudicating ETA 9089 PERM applications filed in or before July 2020 and processing PERM prevailing wage requests filed in or before August 2020.

  • On March 9, 2021, USCIS began accepting FY2022 cap-subject H-1B registrations. The registration window will run through March 25, 2021 at 12:00 PM EST. USCIS recently provided tips to avoid common mistakes with the H-1B electronic registration process. USCIS stated that the two most common user errors were (1) creating the wrong type of account and (2) entering the same beneficiary more than once. For more information on how to avoid these mistakes, please see USCIS’ Step-by-Step Instructions here.

  • DOS announced that it has extended its policy to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification until December 31, 2021. Applicants whose nonimmigrant visa expired within 48 months are eligible. Previously, only those applicants whose nonimmigrant visa expired within 24 months were eligible for an interview waiver.

  • USCIS recently announced the introduction of myUploads, a new feature in myE-Verify that helps employees electronically resolve DHS tentative non-confirmations (“TNCs”) by uploading images of their documentation through a computer or smart device. This new feature is free and is available to all users that have a myE-Verify account. This feature aims to expedite employment eligibility confirmation and resolve TNCs. However, employers may not require employees to use myUploads, myE-Verify or Self Check to resolve a TNC or to pre-check their employment authorization.

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