Business Immigration in a Minute by Honigman LLP

• As a follow up to last week’s notification that the 2019 Public Charge Final Rule had been eliminated, on March 9, 2021, United States Citizenship and Immigration Services (“USCIS”) published a final rule removing the regulatory text regarding the August 2019 Public Charge Rule from the Code of Federal Regulations and effectively restoring the regulatory text of the 1999 public charge regulation.
  
  
• Today, the Department of Labor (“DOL”) published a new final rule that delays the effective date of the Trump Administration rule modifying the computation of prevailing wage levels for H-1B, H-1B1, E-3 and the PERM programs from May 14, 2021 to November 14, 2022. DOL had previously delayed the effective date of this rule until May 14, 2021 and has now extended the delay another 18 months to allow the agency additional time to thoroughly consider the legal and policy issues raised in the rule. As a result of this new final rule, DOL will not apply the proposed wage data computation changes to any H-1B registration period that takes place before November 14, 2022.
  
  

• U.S. Customs and Border Protection (“CBP”) has extended border restrictions permitting only essential travel across the U.S.-Canada and U.S.-Mexico land borders through April 21, 2021. Essential travel includes travel by U.S. citizens, lawful permanent residents, and foreign nationals traveling to work in the United States, among other purposes. These restrictions do not affect air travel. For more information on the restrictions, please review the full CBP update.
  
  

• Much earlier than expected this month, the U.S. Department of State (“DOS”) released the April 2021 Visa Bulletin on March 12, 2021. In addition to final action dates and dates for filing for employment-based immigrant visa and adjustment of status cases, it contains notes on the diversity visa category and diversity category rank cut-offs which will apply in April. All first employment-based preference countries of chargeability are current for the month of April.  For April 2021, USCIS has not yet specified whether employment-based adjustment of status applicants must use the final action dates chart or the dates for filing chart for the month of April.
  
  

• On March 12, 2021, USCIS announced it may reopen and/or reconsider adverse decisions on Form I-129 made based on three rescinded policy memos. The three now-rescinded memos related to the employee-employer relationship for H-1B adjudications and the issue of whether a computer programmer position presumably qualifies as a specialty occupation for H-1B status. USCIS will discretionarily accept a motion to reopen that is filed more than 30 days after the decision, as long as it is filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier.
  
  

• DOS recently announced that certain immigrant visa applicants who were previously denied a visa pursuant to the Trump administration’s now-revoked proclamations that suspended the entry of foreign nationals from primarily Muslim-majority and African countries may now seek re-adjudication or apply for a new visa. Immigrant visa applicants who were denied on or after January 20, 2020 due to the previous proclamations may seek re-adjudication without re-submitting their application forms or paying additional fees, provided the underlying visa petition remain valid. Immigrant visa applicants who were denied prior to January 20, 2020 may also be reconsidered, but these individuals must submit new applications and pay a new application fee. For more information, please review the full DOS instructions here.

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