Legal Update Roundup (February/March 2021)

March 8, 2021

The immigration legal updates have kept flying in since Inauguration, so we’re summarizing some of the key developments as they relate to business immigration:

• 2000 Guidance on H-1B Computer-Related Occupations Back in Place

One of the causes for the increase in RFEs and denials we’ve seen in the past few years is a 2017 Trump era memo that called for more scrutiny of computer programmer and other entry-level computer positions when determining eligibility for H-1B visas by rescinding an earlier 2000 memo that recognized many of those occupations as requiring a minimum of a bachelor’s degree in a specific specialty field. On 2/3/21, USCIS confirmed that USCIS officers should not apply the 2017 memo to any pending or new requests for H-1B classification. Indicated that further guidance will be forthcoming. This follows from a December 16, 2020, 9^th circuit opinion overturning a USCIS’ denial of an H-1B nonimmigrant visa petition as arbitrary and capricious (Innova Solutions v. Baran).

• U.S. Citizenship Act of 2021 Introduced

On 2/18/21, the U.S. Citizenship Act of 2021 was introduced in the House. It includes both good and bad provisions for business immigration, highlighted below.

• • The Good
    • For foreign nationals going through the lawful residency process, it significantly increases the overall immigrant visa numbers available & counts how a number is “used” differently (so that spouses and children are not counted against the cap).
    • Provides protection for children of H-1B workers who are aging out of H-4 status (when they turn 21).
    • Provides an expedited path for STEM graduates from US institutions to gain residency status, including a Green Card path for U.S. PhDs in STEM fields and considering F-1 visas to be dual intent.
  • The Bad
    • Gives the government broad discretion to stop processing cases in geographical areas it determines are “in economic distress.” This is a very vague standard that could be subject to the whims of whoever is the President at the time.  
    • Contains a provision that would replace the fiscal year H-1B lottery with a wage-based system.

We will continue to monitor the status of this proposed legislation.

• Presidential Proclamation Revoking Immigrant Visa Ban

On 2/24/21, President Biden revoked Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131, which suspended immigrant visas due to the 2019 novel Coronavirus outbreak. A separate Proclamation suspending the entry of individuals on certain nonimmigrant visas remains in place and is set to expire March 31, 2021.

• USCIS Announced Flexibility for Certain F-1 Students Filing Form I-765 (EAD) for OPT

On 2/26/21, USCIS announced flexibility for certain foreign students affected by delayed receipt notices for I-765 (Applications for Employment Authorization), only for applications received October 1, 2020 - May 1, 2021.

These flexibilities include:

• • 14-month OPT period flexibilities: F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.
  • Refiling after rejection: Through May 31, 2021, USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:
    • The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and
    • USCIS subsequently rejected it.
  • RFEs for missing or deficient signatures rather than outright denials

This flexibility follows a USCIS announcement that it has continued to experience delays at certain lockboxes in issuing receipt notices for Form I-765 relating to OPT for F-1 students. Per USCIS, these delays will not affect the received date; USCIS will not reject applications that were filed at the lockbox address in use prior to the change in filing instructions announced on 1/8/21; and that USCIS will automatically extend employment authorization for 180 days for those who have filed Form I-765 based on STEM OPT and whose post-completion OPT period expires while the application is pending.

• DOS Provides Information on National Interest Exceptions for Certain Travelers from Europe

On 3/2/21, the Department of State rescinded four categories of individuals and their dependents previously eligible for a National Interest Exception (NIE) under the COVID-19-related ban for the Schengen Area, U.K., and Ireland. These include certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents. The DOS also made a new national interest determination covering certain travelers seeking to provide vital support for critical infrastructure.

• Expansion of India Interview Waiver Eligibility Expiring 3/31/21 & Travel Reminders

This is a friendly reminder that a temporary expansion of India Interview Waiver (formerly Drop Box) eligibility that allows for applicants whose nonimmigrant visas expired within the preceding 24 months to renew their visas will expire on March 31, 2021. After March 31, 2021, once again, only those applicants whose nonimmigrant visas expired within the past 12 months will be eligible for an interview waiver. Travelers are encouraged to review the website of the applicable U.S. embassy or consulate for eligibility information and instructions on applying for a visa without an interview. 

At this time, in general, WSM is still advising against non-essential international travel at this time. Departing the U.S. in the midst of the continually evolving COVID-19 situation carries the risk that you may not be able to re-enter the U.S. when you plan to do so and could get stuck abroad indefinitely. Furthermore, additional countries could be added to the travel ban due to COVID, (which would prevent re-entering the U.S. after traveling to certain countries) with little notice. See COVID travel ban extended and expanded.  There is always the possibility that you could face a quarantine mandate or the country you’re visiting could have a restriction prohibiting you from re-entering the U.S. from that country. And there is now a negative COVID test requirement prior to entering the U.S.

Moreover, operations at most U.S. consulates and embassies are currently at a standstill for all but emergency appointments. It is unclear when the consulates will resume normal operations and even when they do, a long backlog is expected for appointments.

In sum, overall we’re advising against international travel in most cases, but if you go, you and your employer should be prepared for you to be stuck outside the U.S. for an unpredictable amount of time. If you must travel for emergency reasons, we recommend consulting with your Weaver Schlenger attorney in advance.

We will continue to track developments closely and post on them here.