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Immigration Update

Jun 28, 2021 | Immigration Updates

In this edition, read about the EB-5 program’s outlook, temporary travel restrictions continuing from Canada and Mexico, and USCIS allowing resubmission of certain rejected or closed FY 2021 H-1B petitions.

EB-5 Program to Expire June 30 After Efforts Fail in Senate; Reauthorization Still Possible Later

Uncertainty for a long-standing program: the EB-5 regional center program, under which foreign investors indirectly finance projects in the United States in exchange for green cards, is set to expire on June 30, 2021. An effort to extend the program failed in the Senate on June 24, 2021, because Sen. Lindsey Graham (R-S.C.) objected to unanimous consent. Since the Senate has recessed until July, it appears that the EB-5 regional center program will expire. It remains to be seen whether Congress will reauthorize it later. However, the program enjoys broad bipartisan support and we expect it to be reauthorized.  We will keep you posted.

Details: “What Happens if the EB-5 Regional Center Program Expires on June 30?,” EB-5 Daily, May 4, 2021, https://www.eb5daily.com/2021/05/what-happens-if-the-eb-5-regional-center-program-expires-on-june-30/

CBP Continues Temporary Travel Restrictions from Canada, Mexico Into United States Via Land POEs and Ferries

The COVID-19 travel restrictions for Canada and Mexico continue for now. The Department of Homeland Security (DHS) announced that temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through July 21, 2021. The restrictions only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined in the notice.

Details: Federal Register notice (Canada), June 23, 2021, https://www.govinfo.gov/content/pkg/FR-2021-06-23/pdf/2021-13238.pdf Federal Register notice (Mexico), June 23, 2021, https://www.govinfo.gov/content/pkg/FR-2021-06-23/pdf/2021-13235.pdf

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USCIS Allows Resubmission of Certain FY 2021 H-1B Petitions Rejected or Closed Due to Start Date

Good news for erroneously rejected filings. U.S. Citizenship and Immigration Services (USCIS) announced on June 23, 2021, that it will accept resubmitted fiscal year (FY) 2021 H-1B cap-subject petitions that were rejected or administratively closed solely because the requested start date was after October 1, 2020. Those whose FY 2021 petitions were rejected or administratively closed solely because the petition was based on a registration submitted during the initial registration period, but the petitioner requested a start date after October 1, 2020, may resubmit that previously filed petition, with all applicable fees. Such petitions must be resubmitted before October 1, 2021, USCIS said. If properly resubmitted, the agency will consider the petition to have been filed on the original receipt date.

Details: USCIS alert, June 23, 2021, https://www.uscis.gov/news/alerts/uscis-will-allow-resubmission-of-certain-fy-2021-h-1b-petitions-rejected-or-closed-due-to-start-date

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USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions

On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming. USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said. For more information please see: Source: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf

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Immigration Update

In this edition, find the latest news on the April Visa Bulletin, COVID-19 flexibilities, the H-1B electronic registration selection process, and more!  April Visa Bulletin Shows Worldwide EB-4 Backlog of 5+ Years, EB-2 Retrogression EB-5 Backlog DOS is no longer including a separate column covering applicants chargeable to El Salvador, Guatemala, or Honduras in the charts titled, “Final Action Dates for Employment-Based Preference Cases” and “Dates for Filing of Employment-Based Visa Applications,” for applicants who are seeking an immigrant visa in the EB-4 category. Final action and filing dates for applicants from these three countries are now provided in the column headed “All Chargeability Areas Except Those Listed.”  Previously, DOS was applying the per-country limit to the EB-4 subcategory, which made the “North Central American” (NCA) countries of El Salvador, Guatemala, and Honduras oversubscribed, but preserved religious worker priority dates as “current” for all other chargeability areas. DOS has now announced that it interprets the limit to apply to the family/employment-based system as a whole and not within each category. In other words, because the NCA countries are not oversubscribed in the total family/employment system, DOS cannot set a cutoff for them separately within the EB-4 category.  EB-2 Retrogression  EB-2 […]

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