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Business Immigration in a Minute by Honigman LLP

April 5, 2021
  • On March 31, 2021, President Biden allowed former President Trump’s Proclamation 10052 suspending the entry of certain nonimmigrants in the H-1B, H-2B, L-1, and J-1 categories and their dependents to expire. The ban had been in place since June 24, 2020. As a result of the Proclamation sunsetting, there are currently no visa classification-based nonimmigrant travel bans in place. Applicants who were refused nonimmigrant visas due to the restrictions of Proclamation 10052 may reapply by submitting a new application and a new fee. The Department of State (“DOS”) has indicated that reduced operations and backlogs at U.S. consulates abroad may significantly delay the scheduling of visa appointments. Note, several regional COVID-19 public health bans remain in place and may impede visa issuance and travel for nonimmigrants. 

  • This past week, United States Citizenship and Immigration Services (“USCIS”) announced that it has received enough H-1B cap electronic registrations during the initial registration period of March 9-25, 2021 to reach the FY2022 H-1B numerical allocations for the Regular cap and the Master’s cap. On April 1, 2021, USCIS began accepting H-1B cap-subject petitions for selected beneficiaries and will continue to accept petitions for this round of cap selections until June 30, 2021. While no official numbers have been released on the total number of cap registrations for FY2022 as of the date of this writing, the number is anticipated to be in excess of 300,000. 

  • On March 31, 2021, U.S. Immigration and Customs Enforcement (“ICE”) announced an extension of the flexibilities in rules related to Form I-9 compliance that were granted last year. Due to the continued precautions related to COVID-19, the Department of Homeland Security (“DHS”) has extended this policy until May 31, 2021. 

  • As an accommodation to the extraordinary delay in issuing receipt notices, USCIS recently started sending notices to applicants and their authorized representatives inviting resubmissions of rejected employment based Form I-485, Applications to Register Permanent Resident or Adjust Status. The notices state that applicants may be eligible to re-submit Form I-485 if the applicant applied between October 1, 2020 and December 31, 2020 when a visa was immediately available to the applicant and USCIS rejected the I-485 application due to no response or multiple responses to certain sections.

  • Due to recent changes in the National Interest Exception (“NIE”) guidance for foreign nationals traveling from the Schengen Area, United Kingdom, and Republic of Ireland, employers should keep in mind the following considerations when making an NIE request with a U.S. consulate. Currently, DOS is only providing NIE eligibility for certain travelers from the areas listed above who seek to provide vital support for critical infrastructure in the United States. DOS has not defined “critical infrastructure.” However, DHS’ Cybersecurity and Infrastructure Security Agency (“CISA”) has provided a list of critical infrastructure sectors that may be useful in preparing an NIE request.

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