Categories Department of Labor Department of State News & Updates USCIS

Looming government shutdown’s anticipated impact on immigration

The Senate failed on Monday to pass a key procedural FY 2022 federal budget vote to advance the House-passed short-term government funding bill. If lawmakers fail to reach an agreement, U.S. government funding could expire and lead to a full federal government closure on 12:01 am on October 1, 2021.

What impact does this have on immigration processing? Each federal agency would have its own shutdown plan, which will coordinated by the Office of Management and Budget. However, based on prior shutdowns in previous years, the following should be expected:

Immigration operations that should remain in operation:

  • Customs and Border Protection (CBP): CBP is likely to continue processing immigration applications at the border and performing inspection functions.
  • Immigration and Customs Enforcement: ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) should continue.
  • SAVE System (USCIS database used by government agencies such as state motor vehicle departments to verify an applicant’s immigration status when processing applications for benefits).

Immigration operations that will likely be suspended:

  • Department of Labor (DOL): As the DOL would likely be categorized as a non-essential function, DOL immigration functions will likely be suspended. No PERM applications, labor condition applications (LCAs), prevailing wage determinations (PWDs) or applications for temporary labor certification would be processed. The agency would not accept PERM applications or audit responses, LCAs or prevailing wage requests either online or by mail.
  • E-Verify: Employers should expect to be unable to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. Please note, employers should not take any adverse action against any employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. All employers will remain subject to Form I-9 obligations and deadlines as usual.
  • Conrad 30 Program

Immigration operations that will be potentially experience further processing delays:

  • U.S. Citizenship and Immigration Services (USCIS): The USCIS should continue to process applications but processing delays, already widespread, would continue or worsen. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown, though COVID-19 precautions are still in place.
  • Department of State: Some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown, but if not, should continue operations. Although the State Department’s visa processing and U.S. citizenship document functions are not expected to be suspended, they may be further affected by reduced staffing and other effects of the COVID-19 pandemic.

We will continue to monitor the situation and provide updates as they become available. In the meantime, please contact your Graham Adair attorney with any questions.

Categories News & Updates USCIS

USCIS To Suspend Biometrics Requirements for Certain I-539 Applicants

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.

Categories News & Updates USCIS

USCIS Announces End of Enforcement of Public Charge Rule

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.

Categories News & Updates USCIS

USCIS Announces the H-1B Lottery Registration Procedures for this Year

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 9th and close at noon Eastern time on the 25th.

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.

Categories Department of Labor News & Updates USCIS

H-1B Cap Lottery System Modification – Final Rule

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.