Newsletter – July 2021

News RoomFebruary 23, 2022

Newsletter – July 2021

Department of State Extends NIEs for Certain Travelers

On July 6, the Department of State announced that it would extend the validity of National Interest Exceptions (NIE) for travelers from China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, Ireland, and India to twelve months from the date of approval and for multiple entries. This announcement applies retroactively to all NIEs approved by a U.S. embassy or consulate within the past 12 months but does not apply to Customs and Border Protection issued NIEs. In other words, if the NIE has been previously approved by a U.S. embassy or consulate, the NIE will be valid for 12 months from the date of approval and for multiple entries, as long as they are used for the purpose under which they were granted. In the past, NIEs were only granted for 30 days, and travelers had to enter the US within the 30 days or request a new NIE.

Among the qualifications for an NIE, travelers have to provide vital support or executive direction to critical infrastructure; provide vital support or executive direction for significant economic activity in the United States; travel due to extraordinary humanitarian concerns; or travel in support of security or public health. A current list of travel restrictions and exceptions may be found by visiting the DOS’ website.

Please contact a member of our legal team if you are impacted by the travel ban and have questions regarding your eligibility for an NIE.

USCIS Releases FY2021 and FY2022 H-1B Cap Registration Numbers

On its website, USCIS has released the registration statistics for FY2021 and FY2022 H-1B Cap Registrations. For FY2021 (March 2020), USCIS received 274,237 H-1B registrations and initially selected 106,100 registrations projected as needed to reach the numerical allocation. In August 2020, USCIS conducted a second selection for an additional 18,315 registrations due to low filing volume from the initial selection, resulting in a total of 124,415 selected registrations for FY2021. Thus, the total registrations selected represent approximately 45% of registrations submitted. For FY2022 (March 2021), USCIS selected 308,613 H-1B registrations, a 12% increase from FY2021, during the initial registration period and selected 87,500 registrations projected as needed to reach the numerical cap. Hence, approximately 28% of registrations were selected from the initial section. This is a significant drop compared to the FY2021 selection. Of the registrations filed this year (for FY2022), 48% of all registrations requested consideration under the advanced degree exemption. The total registrations selected for FY2022 is yet to be announced as, like FY2021, USCIS may conduct a second selection if the filing volume is low from the initial section. If USCIS announces a second selection in August we will be sure to update clients on the outcome of that selection.

Lawsuit Challenges H-1B Lottery Cap Registration

A group of over 500 individuals who entered the H-1B registration for FY2022 but were not selected have filed a lawsuit in the U.S. District Court for the District of Columbia alleging that the cap registration rules and regulations that took effect on April 1, 2019, which implemented the H-1B cap registration system, are unlawful. The plaintiffs allege that DHS was rulemaking outside of its authority because the cap registration rules prioritize H-1B lottery registrations and ignore the INA’s mandate to allocate H-1B visas by “alien.” Specifically, the plaintiffs allege that the cap registration rule allows for “individuals with multiple registrations to gain an unfair advantage over individuals with only one registration.” Additionally, the lawsuit alleges that USCIS has implemented the cap registration rules in a manner that is arbitrary and capricious. Ultimately, the plaintiffs seek to declare the cap registration rules as unlawful and invalid as they pertain to the FY 2022 H-1B registration and selection and prohibit their use in a second lottery for FY2022 and for future H-1B lotteries. Moreover, they also ask the court to order the defendants to implement the H-1B cap registration and selection process in a manner that complies with the INA by limiting a selection to one alien.

We will continue to follow this litigation and provide timely updates as they arise.

Federal Court Vacates DOL Wage Rule

On June 23, in Chamber of Commerce, et al. v. DHS, et al, U.S. District Judge White vacated the Department of Labor’s (DOL) Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, and remanded the matter back to the DOL. The Final Rule, which was passed by the previous Administration but delayed by the current Administration, would have imposed steep prevailing wage level increases for certain immigrant and nonimmigrant processes. Following the court’s decision to set aside the Final Rule, on June 29, the DOL confirmed that the operative version of the regulations that determine wage levels are the ones that were in place before publication of the (interim) final rule on October 8, 2020.

Federal Court Sets Aside EB-5 Previous Administrations EB-5 Final Rule

On June 22, Magistrate Judge Corley vacated the EB-5 Immigrant Investor Program Modernization Final Rule that was enacted on November 21, 2019. Among other things, the Final Rule increased the standard investment threshold to $1.8 million, increased the investment amount in a targeted employment area (TEA) to $900,000, restricted the ability for investments to be considered within a TEA, and made other changes to the EB-5 visa. The judge had concluded that the regulations were unlawful because Former Acting Homeland Security Secretary Kevin McAleenan was not properly serving in his position when he promulgated the Final Rule in July 2019 because his appointment was invalid.

The EB-5 program offers foreign investors the opportunity to obtain a visa when they invest in American businesses that create at least ten American Jobs. Prior to the Final Rule, the amount of capital required to obtain an EB-5 visa was $1 million for a standard investment. However, the threshold amount of capital required is lowered to $500,000 if the investment is in a TEA. TEAs are areas which have experienced high unemployment of at least 150% of the national average or a “rural area,” which is any area other than an area within an MSA or within the outer boundary of any city or town having a population of 20,000 or more. Plaintiffs in the litigation allege that the significant investment minimums had “devastating effects on the Program’s participants and the ability to raise capital for job creating development projects.” With Judge Corley’s decision to vacate the Final Rule, USCIS will return to applying the EB-5 regulations that were in effect before the Final Rule took effect, restoring the previous investment minimums of $1 million for a standard investment and $500,000 for an investment in a TEA.

Federal Judge Declares DACA Unlawful

On July 16, U.S. Federal District Judge Hanen issued a permanent injunction against the Deferred Action for Childhood Arrivals (DACA) program and ordered the vacatur of the Department of Homeland Security’s (“DHS”) memorandum establishing the program. The judge ruled that, in establishing the program in 2012, the previous Obama administration had overstepped its executive authority and violated the Administrative Procedures Act. Judge Hanen temporarily stayed portions of his ruling allowing existing 600,000+ DACA beneficiaries, who are often known as DREAMers, in good standing to continue to remain work authorized and enjoy deportation relief. However, DHS may no longer approve new or pending DACA applications.

The Biden Administration has announced its plans to appeal the court’s decision and also issue a proposed rule concerning DACA. Though several bills are currently pending in Congress to provide permanent relief to DACA recipients, they have not yet moved forward, and Congress’ ability to provide a legislative solution remains uncertain. As a result, some lawmakers have suggested including a DREAMers bill in the proposed budget reconciliation bill.

We will continue to closely monitor any litigation or legislative developments and will provide updates as they occur.

Visa Bulletin

The August 2021 visa bulletin made notable progress in some categories, while others remain unchanged, compared to July 2021 in terms of Final Action Dates for employment-based visa applications. EB-1 Worldwide remains current. EB-1 China, India, and Philippines remain current. EB-2 Worldwide remains current. EB-2 China has advanced to April 01, 2018 while India remains unchanged; EB-2 Philippines remains current. EB-3 Worldwide remains current. EB-3 China has advanced to January 08, 2019. EB-3 India has advanced to July 01, 2013, and EB-3 Philippines remains current.

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **