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March 2021 Immigration Alert

USCIS’s FY 2022 H-1B Cap Electronic Registration Begins

Beginning 12:00 p.m. ET (9:00 a.m. PT) on March 9, 2021, until 12:00 p.m. ET (9:00 a.m. PT) on March 25, 2021, U.S. Citizenship and Immigration Services (“USCIS”) will open its H-1B electronic registration process for the fiscal year (“FY”) 2022 H-1B cap. The H-1B electronic registration process was first implemented last year. Similar to last year, H-1B employers and attorneys will be able to register foreign national employees for this year’s H-1B cap through the online process by entering basic company information, employee information, and the payment of a $10 registration fee for each candidate. Following the registration period, USCIS will conduct a random computer-generated lottery to select 65,000 petitions under the H-1B regular cap and 20,000 petitions under the U.S. Master Degree H-1B cap. The agency will notify employers and their representative(s) of the cases selected no later than March 31, 2021. Companies that are considering H-1B sponsorship this year should reach out to the Epstein Becker Green attorneys listed below before the registration deadline of March 25. For more information regarding the H-1B electronic registration process, please view USCIS’s YouTube video

USCIS Expands Premium Processing to E-3 Petitions

USCIS announced that, effective February 24, 2021, E-3 petitions are eligible to request premium processing service. Premium processing allows eligible petitions to be processed by USCIS within 15 calendar days from the date of receipt by USCIS, provided the appropriate filing fee and form are included with the application. Prior to this announcement, E-3 was not an eligible category for premium processing, and only select nonimmigrant petitions, such as H-1B, L-1, TN, O-1, and E-1/E-2, as well as immigrant petitions, such as EB-1A, EB-1B, EB-2, and EB-3 I-140, were allowed to be premium processed. 

Biden Administration Revokes President Trump’s Immigrant Visa Ban

As of February 24, 2021, President Biden signed Proclamation 10149, which revokes President Trump’s Proclamation 10014. Proclamation 10014 suspended immigration visas (i.e., green cards) to be processed by U.S. consulates and embassies since April 2020, due to the COVID-19 pandemic. The restrictions put in place under Proclamation 10014 are no longer in effect, allowing U.S. consulates and embassies around the world to issue immigrant visa appointments.

Please note that President Trump’s Proclamation 10052, which prevents the issuance of H-1B, L-1, and J-1 nonimmigrant visas, still remains in effect until March 31, 2021, unless revoked sooner by President Biden. As of the date of this Immigration Alert, President Biden has not revoked Proclamation 10052.

Biden Administration Will Not Enforce 2019 “Public Charge” Rule

On March 9, 2021, Secretary of Homeland Security Alejandro N. Mayorkas announced that the government would no longer defend the Trump administration’s 2019 “public charge” rule (84 Fed. Reg. 41292 (Aug. 14, 2019)) before the U.S. Supreme Court. Secretary Mayorkas found that the public charge rule was not in the public interest and not an efficient use of government resources. Accordingly, the Supreme Court dismissed the public charge rule case on March 9.

In 2018, the Trump administration widened the scope of the public charge rule to disqualify noncitizens who rely on welfare programs, such as food stamps, housing assistance, or Medicaid, from obtaining lawful permanent residency. This led to a 20-page form (I-944) that required financial documentation to apply for a green card. With this announcement, we expect the Department of Homeland Security (“DHS”) to follow the prior 1999 interim field guidance on the public charge inadmissibility provision, which will effectively eliminate the Form I-944 requirement. 

Biden Administration Designates Venezuela for Temporary Protected Status

Secretary Mayorkas has designated Venezuela for Temporary Protected Status (“TPS”). TPS can be extended to a country with conditions that fall into one, or more, of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. The TPS designation lasts for 18 months, until September 2022. This designation allows Venezuelan nationals (and individuals without nationality who last resided in Venezuela) to file initial applications for TPS and Employment Authorization Documents, so long as requirements are met. Only individuals who can demonstrate continuous residence in the United States as of March 8, 2021, are eligible for TPS under Venezuela’s designation. 

Special Flexibility to Verify Forms I-9 Ends March 31, 2021

Last year, on March 19, 2020, due to the COVID-19 pandemic, DHS decided to allow special flexibility to verify Form I-9 documents without directly viewing a new hire’s original documents, provided employers followed certain specified requirements. DHS has since extended this special flexibility several times. The current expiration date of the I-9 flexibility rule is March 31, 2021. Unless extended once again, as of April 1, 2021, employers must plan to revert to the pre-COVID-19 requirements of completing and physically examining original Form I-9 documents. 

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 70

About this Author

Jang Hyuk Im, epstein becker green, labor, employment

JANG HYUK IM is a Member of the Firm in the Labor and Employment practice, in the firm's San Francisco office. For more than a decade, he has advised and assisted companies in a wide range of immigration and other employment-related matters.

Mr. Im:

Counsels employers in securing all documentation, visas and permits necessary to facilitate the admission of individuals in temporary working visa classifications into the United States

Assists clients to retain these foreign nationals as full-time...

Jungmin Choi, Employment, Labor and Workforce Management, Immigration Law, Epstein Becker and Green, Law Firm

Jungmin Choi is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Newark office. She concentrates her practice on employment-based immigration law. In 2016, Ms. Choi was recommended in The Legal 500 United States, for Immigration.

Ms. Choi's experience includes:

  • Advising employers in variety of industries on business-related immigration matters involving the recruitment, hiring, transfer, and retention of foreign nationals in the United States
  • ...
Senior Counsel

ARIT BUTANI* is a Senior Attorney in the Immigration Law Group, in the San Francisco office of Epstein Becker Green.

Mr. Butani:

  • Provides strategic counsel to clients of all sizes and from various industries—including software companies, biotechnology companies, architecture firms, financial institutions, manufacturing companies, brand marketing companies, entertainment companies, IT consulting firms, and staffing agencies, among others—on all aspects of immigration
  • Advises on a wide range of business immigration issues, including PERM, PERM...