April 2021 Immigration Alert

USCIS’s FY 2022 H-1B Cap
Electronic Registration Completed

On March 30, 2021, U.S. Citizenship and Immigration Services (“USCIS”) completed the initial selection of H-1B cap-subject registrations for fiscal year (“FY”) 2022. Petitioners selected through the random selection process may file their H-1B cap petition within the period stated on the registration selection notice. The filing deadline for the H-1B cap-subject petition is June 30, 2021. Petitioners must include a printed copy of the applicable registration selection notice with their FY 2022 H-1B cap-subject petition.

USCIS Withdraws Prior Administration’s
Public Charge Requirements on Forms

Starting March 9, 2021, USCIS advises that no applicants or petitioners should provide public charge entries required by the prior administration on the Form I-129, Form I-129CW, Form I-539, Form I-539A, and Form I-485. If an applicant or petitioner has already provided such information, and if USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information provided that relates solely to the public charge rule (84 Fed. Reg. 41292 (Aug. 14, 2019)). 

USCIS has also amended the above forms to take out all mention of the public charge requirements. Therefore, as of April 19, 2021, USCIS will accept only the 03/10/21 edition of the Form I-485; as of July 1, 2021, USCIS will accept only the 03/10/21 edition of the Form I-129; and as of April 19, 2021, USCIS will accept only the 03/10/21 edition of the Form I-539 and Form I-539A.

President Trump’s H-1B, L-1, and J-1
Nonimmigrant Visa Ban Expires

President Trump’s 2020 Proclamation 10052, preventing issuance of H-1B, L-1, and J-1 nonimmigrant visas, has expired. As a result, foreign nationals previously barred from applying for any of these nonimmigrant visas may now apply for them at any U.S. embassy or consulates around the world. Please note, however, that many U.S. embassies and consulates may still have limited or no visa operations due to COVID-19 closures. We recommend that anyone who wants to apply for a visa at a U.S. embassy or consulate first check the embassy’s or consulate’s website to confirm whether visa operations are open and, if they are, to follow directions regarding making an appointment. Due to COVID-19 closures, there may be significant backlogs in visa appointments.

DHS Extends Special Flexibility to Verify Forms I-9

On March 20, 2020, Epstein Becker Green posted its Special Immigration Alert summarizing a decision made by the Department of Homeland Security (“DHS”) in response to the COVID-19 pandemic to allow special flexibility to verify Form I-9 documents without viewing a new hire’s original documents, provided employers followed certain specified requirements. Since then, because of the continuing pandemic, DHS has extended this special flexibility several times and, on March 31, 2021, did so again—this time to May 31, 2021. Unless extended again, as of May 31, 2021, all employers must revert to the pre-COVID-19 requirements to complete I-9 verification of new hires. We will provide an update if this special flexibility is further extended.

USCIS Extends Online Filing of Form I-765 to F-1 Students
Seeking Optional Practical Training

On April 12, 2021, USCIS announced that F-1 students seeking optional practical training (“OPT”) can now file Form I-765, Application for Employment Authorization, online under one of the following categories:

  • (c)(3)(A) – Pre-Completion OPT
  • (c)(3)(B) – Post-Completion OPT
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students

Please note that this option is available only to F-1 students seeking OPT. Applicants filing under a different category will be denied, and USCIS will retain the fee.

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If you have any questions regarding this Alert or any other U.S. immigration issues, please contact Epstein Becker Green’s immigration team:

Jang Hyuk Im
San Francisco
415/399-6067
[email protected]

Jungmin Choi
Newark
973/639-5226
[email protected]

Arit Butani
San Francisco
415/399-6026
[email protected]