The Biden administration and Democratic sponsors in the Senate and House of Representatives have put forth a sweeping new immigration reform bill, the 353-page "U.S. Citizenship Act of 2021.
USCIS issued official confirmation that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for fiscal year 2021. This officially closes the FY 2021 H-1B cap season, which was based on the March 2020 registration period.
The guidance prioritizes for removal noncitizens with a national security, border security, or public safety issue, as defined in the memorandum.
USCIS Clarifies Delays at Lockboxes in Issuing Receipt Notices for I-765 Employment Authorization for OPT
USCIS notified stakeholders that the agency continues to experience delays at certain lockboxes in issuing receipt notices for Form I-765, Application for Employment Authorization, based on eligibility categories relating to optional practical training (OPT) for F-1 students.
Dept. of State Revises Definition of "Equivalent of Diplomatic Passport" and Clarifies Eligibility for "Diplomatic Type" or "Official Type" Visa Categories
DOS issued a final rule to revise the definition of "equivalent of a diplomatic passport" and to clarify the categories of nonimmigrants who may be eligible for a "diplomatic type" or "official type" visa.
DOS announced exemptions for certain travelers from COVID-19-related restrictions based on the national interest.
The latest news at the firm including recent and upcoming events and publications.
1. “U.S. Citizenship Act of 2021" Unveiled by Biden Administration, Democrats
The Biden administration and Democratic sponsors in the Senate and House of Representatives have put forth a sweeping new immigration reform bill, the 353-page “U.S.
Citizenship Act of 2021.” The bill states its purpose as providing an earned path to citizenship, addressing the root causes of migration, responsibly managing the southern border, reforming the immigrant visa system, and other goals. The bill does not emphasize enforcement.
The bill would amend the Immigration and Nationality Act by striking the term “alien” and replacing it with “noncitizen.” The term “alien” has been in use for centuries, but some find it demeaning. According to reports, Tracy Renaud, who is serving as acting director for U.S. Citizenship and Immigration Services, recently sent a memorandum to agency staff encouraging them to avoid use of the terms “alien” and “illegal alien” and instead to use “more inclusive language in the agency’s outreach efforts, internal documents and in overall communication with stakeholders, partners and the general public,” including “noncitizen” and “undocumented noncitizen” or “undocumented individual.”
It is likely that the bill will not pass intact, but smaller targeted pieces could be moved forward and supported separately. Another avenue being suggested for implementation is via the budget reconciliation process.
Below is a non-exhaustive list of selected highlights of the proposed legislation. The bill would:
- Establish an “earned path to citizenship” for “eligible entrants” (and their spouses and children) that provides for an initial period of authorized admission as a “lawful prospective immigrant,” valid for six years and extendable. Qualifying individuals would also receive a work permit and travel authorization. A lawful prospective immigrant could become eligible for permanent residence after at least five years of prospective status. Prospective applicants would need to have been in the United States before 2021.
- Raise to 170,000 (from 140,000) the annual number of employment-based immigrants, and add unused employment-based green cards to the maximum. (Derivatives of employment-based immigrants will not count against numerical caps.)
- Provide permanent residence, without numerical limits, to international students with PhDs in science, technology, engineering, and math fields from U.S. universities.
- Provide for adjustment to lawful permanent resident status for noncitizens who entered the United States as children (e.g., “Dreamers” under the Deferred Action for Childhood Arrivals program).
- Provide permanent residence to those who have had an approved immigrant petition for 10 years.
- Provide for adjustment to lawful permanent resident status for agricultural workers who have performed agricultural labor or services during the immediately preceding five-year period for at least 2,300 hours or 400 work days.
- Provide for adjustment to lawful permanent resident status for certain nationals of countries designated for temporary protected status or deferred enforced departure.
- Increase diversity green cards from 55,000 to 80,000 each year. (Derivatives of DV immigrants will not count against numerical caps.)
- Eliminate employment-based per-country levels.
- Increase immigrant visas for “other workers.”
- Provide for the establishment of a procedure to temporarily limit admission of certain immigrants in geographic areas or labor market sectors that are experiencing high levels of unemployment.
- Establish a pilot program for up to five years to admit annually up to 10,000 “admissible immigrants whose employment is essential to the economic development strategies of the cities or counties in which they will live or work.”
- Consider prioritizing nonimmigrant visas (including H-1B) based on the wages offered by employers.
- Allow work authorization for H-4 nonimmigrant spouses and children of H-1B nonimmigrants.
- Provide for expediting legitimate trade and travel at ports of entry.
- Authorize employment for asylum applicants who are not detained and whose applications have not been determined to be frivolous.
- Establish an employment authorization commission to make recommendations on policies to verify the eligibility of noncitizens for employment in the United States.
- Conduct a study on factors affecting employment opportunities for immigrants and refugees with professional credentials obtained in foreign countries.
The bill also includes provisions to address “migration needs by strengthening regional humanitarian responses for refugees and asylum seekers in the Western Hemisphere and [strengthen] repatriation initiatives, promote “immigrant and refugee integration,” address immigration court backlogs, and expand programs to address the “root causes of migration” and “responsibly [manage] the southern border.”
- Text of House bill, https://lindasanchez.house.gov/sites/lindasanchez.house.gov/files/2021.02.18%20US%20Citizenship%20Act%20Bill%20Text%20-%20SIGNED.pdf
- Text of Senate bill, https://www.menendez.senate.gov/imo/media/doc/USCitizenshipAct2021BillText.pdf
- Siskind Summary, https://bit.ly/3duYkfn
- “Joe Biden’s Administration Orders Immigration Officials to Remove ‘Alien’ and ‘Illegal Alien’ From Official Communications and Use ‘Noncitizen’ Instead to Avoid ‘Dehumanizing Language,’ ” Daily Mail, Feb. 16, 2021, https://www.dailymail.co.uk/news/article-9265823/Biden-orders-officials-remove-illegal-alien-official-communications-use-non-citizen.html?ITO=applenews
- ” ‘Aliens’ No More: Biden Administration Directs Immigration Officials To Use ‘Inclusive Language,’ ” Forbes, Feb. 16, 2021, https://bit.ly/3dx978H
- “New Bill Has Many Good But Two Bad Measures for Employment Immigrants,” Forbes, Feb. 19, 2021, https://www.forbes.com/sites/stuartanderson/2021/02/19/new-bill-has-many-good-but-two-bad-measures-for-employment-immigrants/?sh=4bec5be35af9
- “Democrats Introduce an Immigration Overhaul Bill. Here’s What Would Change,” NBC News, Feb. 18, 2021, https://www.nbcnews.com/politics/immigration/white-house-throws-support-behind-democratic-immigration-bill-ahead-rollout-n1258206
- “Biden’s Immigration Bill Lands on the Hill Facing Bleak Odds,” Politico, Feb. 18, 2021, https://www.politico.com/news/2021/02/18/bidens-immigration-bill-bleak-odds-469769
- “Democratic Lawmakers Unveil Biden-Backed Immigration Overhaul Bill,” CBS News, Feb. 18, 2021, https://www.cbsnews.com/news/immigration-bill-democrats-biden-unveil/
- “House Announces Sweeping Immigration Bill,” CNN, Feb. 18, 2021, https://www.cnn.com/2021/02/18/politics/biden-immigration-legislation/index.html USCIS Reaches FY 2021 H-1B Cap
2. USCIS Reaches FY 2021 H-1B Cap
U.S. Citizenship and Immigration Services (USCIS) formally announced that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for fiscal year (FY) 2021. USCIS has also completed posting of non-selection notifications to registrants’ online accounts. This announcement formally closes the FY 2021 H-1B lottery season based on the registration period of March 2020. Any selected and timely filed FY 2021 H-1B petitions still pending adjudication with USCIS are included in the count and will proceed to adjudication.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
- “USCIS Reaches Fiscal Year 2021 H-1B Cap,” USCIS, Feb. 16, 2021, https://www.uscis.gov/news/alerts/uscis-reaches-fiscal-year-2021-h-1b-cap
- H-1B Cap Season, USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season
3. ICE Issues Interim Guidance on Civil Immigration Enforcement and Removal Priorities
On February 18, 2021, U.S. Immigration and Customs Enforcement (ICE) issued interim guidance, effective immediately, on priorities for enforcement actions, custody decisions, the execution of final orders of removal, financial expenditures, and strategic planning. The guidance will remain in effect until Alejandro Mayorkas, Department of Homeland Security Secretary, issues new enforcement guidelines, which are expected in fewer than 90 days.
The guidance prioritizes for removal noncitizens with a national security, border security, or public safety issue, as defined in the memorandum. Any civil immigration enforcement or removal actions that do not meet the criteria in the memorandum for “presumed priority” cases will require written justification and preapproval.
- “Interim Guidance: Civil Immigration Enforcement and Removal Priorities,” ICE, Feb. 18, 2021, https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf
4. USCIS Clarifies Delays at Lockboxes in Issuing Receipt Notices for I-765 Employment Authorization for OPT
U.S. Citizenship and Immigration Services (USCIS) notified stakeholders that the agency continues to experience delays at certain lockboxes in issuing receipt notices for Form I-765, Application for Employment Authorization, based on eligibility categories relating to optional practical training (OPT) for F-1 students. USCIS currently recommends that such applicants wait eight weeks before contacting the agency to ask about case status.
USCIS provided clarifications and reminders:
- The delays will not affect the received date. All submissions are date-stamped upon arrival at the lockbox, so regardless of when the lockbox processes the application, the received date will reflect the date it actually arrived at the lockbox.
- USCIS will not reject applications solely because they were filed at the lockbox address in use before the change to the filing address instructions announced on January 8, 2021. The agency encourages applicants filing Form I-765 to always check the form instructions on USCIS’s website for the most up-to-date filing instructions.
- If an applicant timely filed Form I-765 based on STEM [science, technology, engineering, and mathematics] OPT, and the post-completion OPT period expires while the application is pending, USCIS will automatically extend the employment authorization for 180 days. The Form I-20 endorsed by the designated school official recommending a STEM extension together with the expired Form I-766 employment authorization document issued for post-completion OPT establishes identity and work authorization for purposes of documenting employment authorization.
- “Direct Filing Addresses for Form I-765, Application for Employment Authorization,” Feb. 19, 2021, https://www.uscis.gov/i-765-addresses
- USCIS Lockbox Updates (the notice above had not yet been posted on USCIS’s website as of February 21, 2021), https://www.uscis.gov/news/alerts/uscis-lockbox-updates
5. Dept. of State Revises Definition of "Equivalent of Diplomatic Passport" and Clarifies Eligibility for "Diplomatic Type" or "Official Type" Visa Categories
The Department of State issued a final rule on February 22, 2021, to revise the definition of “equivalent of a diplomatic passport” to include non-national passports issued by a competent authority other than a foreign government and as designated by the Secretary of State; and to clarify the categories of nonimmigrants who may be eligible for a “diplomatic type” or “official type” visa, irrespective of the nonimmigrant visa classification.
- Visas: Eligibility for Diplomatic and Official Visas, Final Rule, Dept. of State, Feb. 22, 2021, https://bit.ly/3s7xfmk
6. State Dept. Exempts Certain Travelers From Restrictions
The Department of State announced exemptions for certain travelers from COVID-19-related restrictions based on the national interest:
- On February 10, 2021, the Department of State (DOS) announced that certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom (UK), and Ireland. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) may travel to the United States while the PP remains in effect following the procedures below, DOS said.
- Also, on January 28, 2021, DOS announced that certain H-2 travelers from South Africa may qualify for national interest exceptions.
Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Applicants who are otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class or an ESTA authorization issued before the PP’s effective date, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.
“Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship,” DOS said.
H-2A and certain H-2B travelers who have been present in South Africa may qualify for national interest exceptions “if they are providing temporary labor or services essential to the United States food supply chain.” A non-exhaustive list of covered occupations includes seafood processors, fish cutters, salmon roe technicians, farm equipment mechanics, and agriculture equipment operators. Applicants applying for a visa will be considered for an exception at the time of interview, DOS said. “Travelers who already hold valid H-2A or food-supply-chain related H-2B visas and believe they meet the exception criteria should follow the procedures set forth on the Embassy/Consulate website where their visa was processed for consideration for an exception,” DOS said. The exception criteria only apply to H-2 travelers and applicants subject to a January 25, 2021, Presidential Proclamation due to physical presence in South Africa.
DOS said it continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.
- “National Interest Exceptions for Certain Travelers From the Schengen Area, United Kingdom, and Ireland,” Dept. of State, Feb. 10, 2021, https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html
- “National Interest Exception for Certain H-2 Travelers From South Africa,” Dept. of State, Jan. 28, 2021, https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exception-for-certain-h-2-travelers-from-south-africa.html
7. KLASKO NEWS
The 2021 annual KILP seminar is postponed until October. Watch for an official announcement email as well as a spring webinar series in its place.
H. Ronald Klasko | Daniel B. Lundy | Jessica A. DeNisi
We will be releasing a three-part podcast series where Klasko’s EB-5 attorneys discuss problems that arise in EB-5, as well as an episode for green card holder abroad one year into the pandemic. Subscribe to Statutes of Liberty on your preferred podcast platform.
IN THE NEWS
William A. Stock
Bill was quoted in this Forbes article for his opinion on Biden’s new immigration reform bill which has many provisions for employment-based visa categories.
RECENT SPEAKING ENGAGEMENTS
Michele G. Madera
On February 4th, Michele virtually presented to Harvard University on Visa Options After Graduation.
Elise A. Fialkowski | Allie K. Dempsey
On February 4th, Elise and Allie spoke to Saint Joseph’s University on Immigration Law Information.
Maria M. Mihaylova
Maria Mihaylova presented to Arcadia University on F-1 International Students on February 9th.
Michele G. Madera | Jordan J. Gonzalez | William Trevethick
On February 9th, Partner Michele Madera, Associate Jordan Gonzalez, and Paralegal Will Trevethick spoke to AmerisourceBergen covering Immigration Law Information
William A. Stock
Bill spoke at the TexasBarCLE 19th Annual Advanced Immigration Law 2021 virtual event on a panel entitled Advanced Issues for Business Visitors.
Jessica A. DeNisi
On February 19th, Jessica spoke in this Chetcuti Cauchi – Malta Investment virtual event discussing U.S. E-2 Visa through Grenadian Citizenship for Nigerian Nationals.
Jordan J. Gonzalez
Jordan spoke in this I Belong 2021 virtual event examining what President Biden and his team can achieve to modernize the immigration system and more on February 22nd.
William A. Stock
On February 26th, Bill spoke as a distinguished guest at the AILA South Florida 42nd Annual CLE on a panel entitled DOL Updates.
UPCOMING SPEAKING ENGAGEMENTS
William A. Stock
On March 3rd, Bill will be speaking at the 2021 AILA Midwinter Virtual Conference event on a panel entitled Economic Fallout from the Pandemic.
Maria M. Mihaylova
On March 23rd, Maria Mihaylova will be presenting to Rutgers University.
ICYMI: RECENT BLOG POSTS AND ALERTS
Litigation Success Story – After Years of Fighting, “At Risk” Finally Means At Risk
In this article, Daniel B. Lundy gives insight on the outcome of the Mirror Lake Village, LLC et al. v. Wolf case and explains what this means for EB-5 investors.
March 2021 Visa Bulletin
In this blog, the USCIS gives an update on which chart to use for employment and family-based categories.
Biden’s Initial Immigration Actions Aim to Stabilize a Community in Chaos
In this article, Jessica A. DeNisi covers how President Biden’s initial immigration actions aim to stabilize chaos.
Client Alert: USCIS Delays Changes to 2021 H-1B Lottery
In this client alert, Bill Stock addresses the USCIS announcement to delay the effective date of the H-1B Selection final rule, which changes the selection process of H-1B petitions.
On February 19th, the firm was treated to a viewing of The Undocumented Lawyer and a live Q&A with Lizbeth Mateo, the attorney at the center of this documentary.
Every month one Klasko employee is nominated for a Ronny Award. This month the Ronny Award went to Senior Accountant Ashley Springfield. Her nominator wrote:
“When Ashley started as Hardik’s replacement, she had the tough task of having to issue all of the filing fee checks during Cap Season. We didn’t miss a beat. In the two years she has been here she has – deservedly – worked her way up to Senior Accountant and the Billing Supervisor. She is one of the smartest, most efficient, and most accurate workers I have ever seen, and has grown into the best and most supportive supervisor I have had. There is no one better suited to lead the accounting unit, and we are lucky to have her. Oh, and she makes excellent cake!”
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.[Back to Top]