Business Immigration in a Minute by Honigman LLP

• Importantly, as we near the start of the fiscal year 2022 H-1B cap registration season, USCIS published a final rule on February 8, 2021 that delays the effective date of the Trump Administration rule creating a wage-based selection process for H-1Bs from March 9, 2021 to December 31, 2021. For the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before December 31, 2021.

• On February 4, 2021, President Biden issued three immigration-related executive orders. In particular, he issued an executive order instructing federal agencies to conduct a review of all regulations, policies, and guidance that affect legal immigration in the United States and make a plan within 90 days to more effectively and efficiently deliver immigration benefits. Notably, the order directs agencies to conduct an immediate review of the 2020 USCIS Fee Rule, as well as the agency’s implementation of the current Public Charge Rule. However, this executive order did not end the current nonimmigrant and immigrant visa bans which are set to expire on March 31, 2021.  

• On January 29, 2021, USCIS published a notice in the Federal Register regarding two preliminary injunctions issued against the 2020 USCIS Fee Rule. The notification states that DHS will continue to comply with the terms of the court orders and will not enforce the filing fee increases set out in the October 2020 final rule. USCIS will continue to accept the fees that were in place prior to October 2, 2020.

• USCIS announced that it is extending flexible deadlines for responding to certain requests and notices from the agency. Petitioners and applicants have an additional 60 calendar days beyond the due date to respond to certain requests and notices that were issued by USCIS from March 1, 2020 through March 31, 2021, including Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke.

• On January 28, 2021, the U.S. District Court for the District of Columbia held in Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., No. 16-1170 (RBW) (D.D.C. Jan. 28, 2021) that DHS did not exceed its statutory authority under the INA when it issued the 2016 24-Month Extension Optional Practical Training (“OPT”) rule, which allows F-1 students in the STEM fields to extend their F-1 OPT status for an additional 24 months. Importantly, the court found that the STEM OPT extension program and the 12-month OPT program for all F-1 students are lawful.

• The Government of Canada recently announced new sweeping travel restrictions in an effort to prevent the spread of COVID-19. Most foreign nationals will be prohibited from entering Canada for discretionary reasons even if they have a valid visa. Anyone intending to travel to Canada for personal or business reasons should first carefully review the information at this link. For those allowed to enter Canada, in addition to showing proof of a negative pre-departure COVID-19 test, Canada will require all arriving air travelers, with very limited exceptions, to take a COVID-19 test on arrival and reserve a room in a Government of Canada-approved hotel for three nights at their own cost while awaiting test results. The Government of Canada will also introduce the 72-hour pre-arrival testing requirement for travelers seeking entry into Canada by land, with limited exceptions, such as commercial truckers. The 14-day mandatory quarantine for all travelers arriving in Canada remains in effect.

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