Business Immigration in a Minute by Honigman LLP

• The Department of State recently extended the validity of National Interest Exceptions (“NIE”) for travelers subject to the geographic proclamations restricting travel due to COVID-19. Unless otherwise noted, existing NIEs 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 initially granted. The extension applies to travelers subject to these proclamations due to their presence in China, Iran, Brazil, South Africa, the Schengen Area, the United Kingdom, Ireland, and India who currently have approved NIEs or who were granted NIEs in conjunction with a visa application. Foreign nationals who are granted NIEs are not subject to the 14-day travel restriction and may travel directly to the United States.
  
  
• On July 1, 2021, the Department of Labor (“DOL”) released the prevailing wage data from the Occupational Employment and Wage Statistics for the 2022 wage year that runs from July 1, 2021 to June 30, 2022. The 2022 prevailing wage data uses the 2010 Standard Occupational Classification (“SOC”) codes, as DOL stated that it intends to delay the implementation of the 2018 SOC codes until July 2022.
  
  
• U.S. Immigration and Customs Enforcement (“ICE”) withdrew its notice of proposed rulemaking published in the Federal Register in September 2020. The proposed rule sought to implement a fixed period of stay for F, J, and certain I nonimmigrants. As a result of ICE’s withdrawal, F, J, and certain I nonimmigrants will continue to possess duration of status as long as they have not otherwise violated the terms of their nonimmigrant status.
  
  
• On June 29, 2021, several hundred H-1B visa applicants filed a lawsuit in the U.S. District Court for the District of Columbia alleging that the electronic H-1B cap registration rules are unlawful. The plaintiffs contend that the Department of Homeland Security (“DHS”) promulgation of the electronic cap registration rules ignores the Immigration and Nationality Act’s (“INA”) mandate to allocate H-1B visas by “alien” because the electronic system allows for multiple H-1B lottery registrations per alien. The plaintiffs explain that because the current selection process is based on the number of registrations, rather than on an individual basis, individuals with multiple registrations have considerably higher probabilities of being selected. As a remedy, the plaintiffs are asking the court to set aside the current electronic cap registration rules and order DHS to implement the H-1B cap registration and selection processes in a manner that complies with the INA by limiting each H-1B selection to one alien.

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