On October 8, 2020, the Department of Homeland Security issued an Interim Final Rule (IFR) titled “Strengthening the H-1B Non-Immigrant Visa Classification Program”. The IFR previously revised and narrowed the regulatory definition of and raised the standards for “specialty occupation” for H-1B nonimmigrant visa applicants.

 

On December 1, 2020, the U.S. District Court for the Northern District of California issued a judgment that blocked the implementation and enforcement of the IFR. In compliance with the vacatur, USCIS has vacated the IFR and restored the previous definition of and standard for the “specialty occupation” requirement.

 

Under the IFR, H-1B applicants were required to obtain a bachelor’s degree in the exact field related to their position. For example, under the rule, employers seeking software engineers would not be allowed to hire applicants with an information technology degree. Nor would they be allowed to use experience or a combination of experience and education as a bachelor’s degree equivalency. Now that the IFR has been vacated, applicants can satisfy “specialty occupation” by obtaining a bachelor’s degree in a field relevant to their profession, or a work experience equivalency.

 

If you have any questions, please contact your Graham Adair attorney.

From May 17, 2021, USCIS will suspend the biometrics requirements for the H-4, L-2, E-1, E-2 and E-3 categories of Form I-539 applications. The suspension will be for at least 2 years. USCIS will retain the discretion to require biometrics on a case-by-case basis.

 

The suspension will apply if: 1) the application is pending as of May 17, 2021 and a biometrics appointment notice has not been received; or 2) the application is received by USCIS between May 17, 2021 and the expiration date of the suspension.

 

USCIS has expressed an intention to eliminate the current backlog and to significantly reduce delays in processing times for these applications. The proposal came in a declaration from USCIS Service Center Operation Directorate Associate Director Connie L. Nolan in the pending federal case Edakunni v. Mayorkas.

 

If you have any questions, please contact your Graham Adair attorney.

The mandatory quarantine period (or Stay-Home Notice) for travelers to Singapore has been extended to 21 days starting on Friday, May 7, 2021 at 11:59 PM. Quarantines must be served at dedicated facilities.

 

Countries exempt from this order are Australia, Brunei, mainland China, New Zealand, Hong Kong and Macau. This order excludes bilaterally negotiated travel lanes, such as the reciprocal green lane or air travel bubble arrangements.

 

If you have any questions, please contact your Graham Adair attorney.

The US will impose travel restrictions from India starting Tuesday, May 4, 2021 from 12.01 am ET (0401 GMT). This is on the advice of the Centers for Disease Control and Prevention in light of the high COVID-19 caseloads and multiple variants circulating in India. This will restrict entry of non-US citizens into the US for those who have been in India within 14 days of their arrival.

 

This restriction will not apply to US citizens, permanent residents and other exempted individuals, such as humanitarian workers. Exempted travelers will still need to meet testing and quarantine requirements currently in effect for international travels entering the U.S.

 

If you are a nonimmigrant visa holder and have plans to travel India we recommend you talk to your employer and your Graham Adair attorney about those plans. It may be advisable to postpone travel while these restrictions are in place.

 

If you have any questions, please contact your Graham Adair attorney.

USCIS has advised that it will immediately stop applying the Public Charge Final Rule to all pending applications and petitions. The previous public charge rule regarding inadmissilbity, in accordance with the 1999 Interim Field Guidance, remains in place.

 

USCIS will no longer apply public benefits conditions to applications or petitions for extension of non-immigrant status or change of non-immigrant status. USCIS will no longer consider an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

 

In addition, USCIS has removed Form I-944 from its website. Information provided on Form I-944 with currently pending applications will not be considered by the officer adjudicating the case.

 

If you have any questions, please contact your Graham Adair attorney.

On 3 March 2021, the Ministry of Manpower published changes that will require Dependent Pass (DP) holders to apply for work passes.

 

Currently, DP holders who are dependents under an employment pass may be eligible to apply for a letter of consent (LOC) to work in Singapore. The LOC is currently not subject to the criteria for work passes and can be applied for by the employer or appointed employment agent.

 

Starting 1 May 2021, DP holders will need to have a work pass (EP, S Pass, or work permit) instead of an LOC if they seek to work in Singapore.

 

The new regulations will apply to any DP holder that seeks employment after 1 May 2021. Any DP holder currently working under an LOC will be allowed to work until the LOC’s expiry. After the LOC expires, the respective employer will need to follow the proper steps to apply for a work pass for the DP holder. Employers hiring DP holders will need to comply with the relevant work pass criteria, such as qualifying salary, dependency ratio ceiling, and/or levies.

 

If you have any questions, please contact your Graham Adair attorney.

Earlier this week, the Biden Administration lifted a ban that was put in place last year on the processing of immigrant visas (green cards) at U.S. consulates. While lifting this ban is good news for many who are awaiting the processing of their immigrant visa, we anticipate that there will still be delays in processing cases because of backlogs and reduced consular staffing caused by the pandemic.

 

The President has left in place the ban on nonimmigrant visas, such and H-1Bs and L-1s, that is set to expire on March 31, 2021. There are some exceptions to this ban, and it does appear that the ban will not be extended and will expire as scheduled.

 

Looking forward, we anticipate that there will be continued delays in getting visas from U.S. consulates while current pandemic restrictions are in place. However, the lifting of the ban on immigrant visas is good news for those who have been precluded from applying over the past several months. If you have questions about travel or your visa application, please contact your attorney at Graham Adair.

Today, USCIS announced the H-1B lottery registration window and process for the fiscal year (FY) 2022 H-1B lottery that will take place on or before March 31, 2021. Registration for the electronic lottery will be open from March 9 – March 25, 2021. Registration will open at noon Eastern time on the 9^th and close at noon Eastern time on the 25^th.

 

As in last year’s lottery, the registration fee is $10. USCIS has indicated that those selected in the lottery will be notified on or before March 31, 2021, and will be eligible to submit applications as early as April 1, 2021.

 

USCIS has also announced that the selection of H-1B cases in this year’s lottery will be completely random. A rule previously published that would have ranked cases for selection based on their prevailing wage level has been postponed until at least December 31, 2021. It is yet to be seen whether this rule will be modified or withdrawn before it goes into effect next year. For this year, the process will remain the same as in previous years.

 

If you have a case that you would like to get registered in the H-1B lottery, please reach out to your attorney at Graham Adair.

Effective January 26, 2021, ALL air passengers traveling internationally to the United States, including US Citizens and Lawful Permanent Residents, will require a negative COVID-19 viral test within three days prior to departure. Proof of the negative laboratory test result (paper or electronic copy) will be required at the time of boarding. If the air passenger has recently recovered from COVID-19, they will be required to provide documentation from a doctor’s office confirming recovery. Any passenger failing to provide the necessary and accurate documentation will be denied boarding.

 

Important takeaways from the CDC order are the following:

 

• Applies to all passengers traveling internationally to the United States regardless of citizenship that are age 2 and older;

• Passengers must take a viral test within 3 days prior to departure and provide a hard or digital copy of negative COVID-19 laboratory test results;

• The name listed on the laboratory test results must match the name on the passenger’s passport, must reflect a negative result, and must include the method of testing to ensure it is a viral test.

 

Currently, the CDC order does not apply to land ports of entry. The new measure is intended to slow the spread of the virus as vaccinations are made available to the public at large. The official CDC press release can be found here.

 

Globally, several countries have also started to require a negative COVID-19 viral test prior to boarding, including the United Kingdom and Canada, among others. We anticipate that several more countries will follow a similar trend.

 

Global travelers should check with Graham Adair and their airline prior to international travel.

Tomorrow, January 8, 2021, the Department of Homeland Security will publish a final rule modifying the H-1B lottery ahead of Cap season, which starts in March. The rule modifies the manner in which the lottery is conducted by prioritizing applications received on the basis of the wage level of the position in relation to similar positions in the geographic area. This rule would eliminate the random selection process that has historically been used. Instead, cases that show a higher prevailing wage according to the corresponding LCA would be given preference over cases filed using lower prevailing wage levels.

 

The rule is set to go into effect 60 days from being published, which means it would apply to this year’s H-1B cap season.

 

The rule is likely to be challenged and could potentially be set aside for failure to follow the required administrative procedure for rulemaking. However, the Biden Administration has expressed support for the concept of H-1B cap allocation based on wage level, so we will be monitoring this situation closely and will provide updates as they become available.