Immigration Update

Aug 23, 2021 | Immigration Updates

In this edition, read about the cap being reached for remaining H-2B visas for FY 2021, USCIS extending flexibilities through October for certain OPT applicants, and a federal court ordering the State Department to adjudicate more than 9,000 DV-2020 visas.

Cap Reached for Remaining H-2B Visas for Returning Workers for FY 2021

As of August 13, 2021, U.S. Citizenship and Immigration Services (USCIS) has received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the fiscal year (FY) 2021 H-2B supplemental visa temporary final rule. USCIS said it will reject and return any cap-subject petitions for H-2B returning workers received after August 13, along with any accompanying fees. USCIS said it will continue to accept H-2B petitions for workers who are exempt from the congressionally mandated cap, including petitions for: (1) current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment; (2) fish roe processors, fish roe technicians, or supervisors of fish roe processing; and (3) workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam from November 28, 2009, until Dec. 31, 2029. USCIS is also currently accepting cap-subject petitions for the first half of FY 2022 for employment start dates on or after October 1, 2021, and before April 1, 2022.

Details: USCIS alert, Aug. 19, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2021  

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USCIS Extends Flexibilities Through October for Certain OPT Applicants Filing Work Authorization Applications

Pursuant to a court order, U.S. Citizenship and Immigration Services (USCIS) extended flexibilities through October 31, 2021, for certain applicants filing Form I-765, Application for Employment Authorization, for optional practical training (OPT) and science, technology, engineering, and mathematics (STEM) OPT. For applicants who timely filed Form I-765 for OPT and STEM OPT and whose applications were later rejected, USCIS will accept a refiled Form I-765 as filed on the original filing date if: (1) the original, timely filed application was received on or after October 1, 2020, through October 31, 2021, inclusive; and (2) USCIS subsequently rejected it. USCIS said refiled applications must be received by November 30, 3021, for USCIS to treat the application as though filed on the original received date. Additionally, for applications received through October 31, 2021, applicants can file Form I-765 up to 120 days before the program end date. Please contact our office if you have any questions.

Details: USCIS alert, July 29, 2021, https://www.uscis.gov/news/alerts/uscis-extends-flexibilities-to-certain-applicants-filing-form-i-765-for-opt

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Court Orders State Dept. to Adjudicate More Than 9,000 DV-2020 Visas

Good news! A federal court ordered the Department of State to adjudicate more than 9,000 DV-2020 cases that were not processed before the fiscal year deadline. The case concerned the Department’s suspension of the processing and issuance of diversity visas for certain classes of foreign nationals during the COVID-19 pandemic, particularly selectees of the diversity visa lottery during the fiscal year that ended September 30, 2020. The court ordered the Department to process the DV-2020 applications in a random order until all of the reserved diversity visas have been granted. “The parties shall notify the court by August 25, 2021, whether they have agreed to a time within which to process the reserved visas. The court will issue a final order once that question is resolved,” the court said, finding that the defendants acted arbitrarily and capriciously in excluding diversity visas from mission-critical processing, and that the defendants unreasonably delayed and unlawfully withheld adjudication of their diversity visas.

Details: Gomez v. Biden, order filed Aug. 17, 2021, https://innovationlawlab.org/media/Gomez_Order-SJ_08.17.21.pdf  

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