Providing Comprehensive Immigration Services

The US Citizenship Act of 2021 “USCA” is an immigration bill introduced in the House on February 18, 2021 that would create a pathway to citizenship for undocumented people living in the United States who entered on or before January 1, 2021. TPS holders, farmworkers, and people who have DACA or who were eligible for status under the Dream Act would be eligible to become lawful permanent residents immediately.

Other undocumented people could apply for a new form of lawful status called “Lawful Provisional Immigrant” (LPI) status. After five years as an LPI, they could then apply to become lawful permanent residents.

Yes, you read this correctly, “entered on or before January 2, 2021.” Does anyone have any idea how many people we are talking about? Well, here are two interesting estimates:
2019 Brookings Institute study: 10.5 to 12 million people
2018 Yale University study: Over 22 million people

Since people who are here without permission tend to avoid questions from the US government, the 2 estimates list above are probably higher.

Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019

On January 25, 2021, President Biden issued a “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.” The Proclamation maintains travel restrictions on individuals from the Schengen Area, U.K., Ireland, China, Iran and Brazil and also adds South Africa to the list of countries with restrictions on entry into the U.S.

This Proclamation will remain in effect until it is terminated, and orders the Secretary of Health and Human Services to provide a recommendation as to whether the Proclamation should be continued, modified, or terminated 30 days from issuance, and by the end of each month thereafter. The Proclamation also orders the Secretary of Health and Human Services to provide a similar recommendation for the China and Iran suspensions within the same initial 30 day window, and by the end of each month thereafter.

Beginning January 26, 2021, all international travelers to the U.S. must provide proof of a negative COVID-19 test to airlines within three days prior to their departure.

On January 18, 2021, a D.C. federal judge issued a partial injunction delaying implementation of increases in immigration court fees for foreign nationals in removal proceedings. The enjoined fee increases were scheduled to take effect on January 19th.

On December 18, 2020, the Department of Justice ("DOJ") published a final rule that increased the fees for those Executive Office for Immigration Review ("EOIR") applications, appeals, and motions that are subject to an EOIR-determined fee. On December 23, 2020, a lawsuit was filed challenging the new fees, primarily on procedural grounds. The January 18, 2021 decision by U.S. District Judge Amit P. Mehta enjoins fee increases for the following forms:

• Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge: Fee remains $110;
• Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer: Fee remains $110;
• Form EOIR-40, Application for Suspension of Deportation: Fee remains $100;
• Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents: Fee remains $100;
• Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents: Fee remains $100; and
• Filing a motion to reopen or reconsider before the Board of Immigration Appeals (BIA): Fee remains $110. Judge Mehta did not enjoin the following fee increases and, as such, these new fees are effective as of January 19, 2021:
• Filing a motion to reopen or reconsider before the Office of the Chief Immigration Judge (OCIJ): Fee increased from $110 to $145. The judge considered this nominal increase to be of minimal impact on plaintiffs; and
• Form EOIR-45, Immigration Practitioner Complaint Form: Fee increased from $110 to $675. This fee was not challenged in the litigation.

The judge also declined to enjoin separately the new $50 fee for filing a defensive asylum application on Form I-589, as that fee is based on a long-standing EOIR policy to collect Department of Homeland Security ("DHS") fees when using DHS forms. As the DHS fee for Form I-589 is currently the subject of two nationwide injunctions, the judge saw no need for a third. Therefore, no fee is required for Form I-589.

In addition, no fee is required for a motion to reopen that is based exclusively on an application for relief that does not require a fee, e.g. Form I-589, or a motion to reconsider that is based exclusively on a prior application for relief that did not require a fee, e.g. Form I-589.

On January 20, 2021, the Department of Homeland Security (“DHS”) issued a memorandum confirming that immigration policies were being reviewed. This review included a 100-day ban on deportations beginning on February 1, 2021. The pause on deportations applies to any noncitizen present in the United States with a final order of removal except one who:

1. According to a written finding by the Director of Immigration and Customs Enforcement (“ICE”), has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.

In opposition to the 100-day ban, the State of Texas requested a Temporary Restraining Order (“TRO”) to enjoin DHS from executing the 100-day ban. On January 26, 2021, US District Judge Drew B. Tipton granted Texas’ TRO which stated:

1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby enjoined and restrained from enforcing and implementing the policies described in the January 20, 2021 Memorandum in Section C entitled “Immediate 100-Day Pause on Removals.”
2. This TRO is granted on a nationwide basis and prohibits enforcement and implementation of the policies described in the January 20, 2021 Memorandum in Section C entitled “Immediate 100-Day Pause on Removals” in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum.

The court ordered the parties to propose a briefing schedule no later than Thursday, January 28, 2021 at 12:00 p.m. with respect Texas’s Request for Preliminary Injunction in its Complaint.

This injunction is effective for 14 days so we will see what happens next.

2 big announcements regarding this year’s H1B lottery.

Big announcement #1:

The H1B registration process timeline is as follows:

March 9: H-1B registration process opens at Noon, Eastern Time;

March 25: H-1B registration process closes at Noon, Eastern Time;

March 31: Date by which USCIS intends to notify selected registrants; and

April 1: Earliest date that FY2022 H-1B cap subject petitions may be filed.

Big announcement #2:

USCIS will continue to use the random lottery selection process rather than the proposed selection process that would have ranked applicants by the highest wage level offered by the employer.
On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule that was to replace the prior random selection process with a new process that selects H1B registrations based on the highest Occupational Employment Statistics (“OES”) prevailing wage level.

On February 4, 2021, the DHS posted for public inspection a final rule delaying the effective date of the wage based selection system for H-1B cap-subject petitions until December 31, 2021.
In the final rule, USCIS conceded that it did not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B wage-based selection system for the upcoming FY2022 H-1B cap season.
DHS will accept comments on the delayed effective date for 30 days, until March 9, 2021. During the delayed effective period, USCIS will work through the issues associated with implementation and “DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.”