Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021-
Per a publication release from the Department of State, Visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance. Visa applicants who were previously refused visas due to the restrictions of Presidential Proclamation 10052 may reapply by submitting a new application including a new fee.
The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March 2020 and will continue to do so as they are able. As post-specific conditions improve, DOS plans to begin providing additional services, culminating eventually in a complete resumption of routine visa services. Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on the services that post is currently offering.
Proclamations on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Persons Who Pose a Risk of Transmitting Coronavirus Disease remain in effect. Standards for National Interest Waivers have been revised-
On January 25, 2021, President Biden signed Proclamation 10143 continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, and expanding restrictions to include travelers from South Africa. U.S. citizens and lawful permanent residents are not subject to the proclamations. Some other exceptions include, but are not limited to: foreign diplomats traveling to the United States on A or G visas and certain family members of U.S. citizens or lawful permanent residents including spouses, minor children, parents (provided that his/her U.S. citizen or lawful permanent resident child is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or lawful permanent resident are unmarried and under the age of 21). This proclamation will remain in effect until terminated by the President.
Previous COVID-related Presidential Proclamations that remain in force are listed below-
- On January 31, 2020, former President Trump signed Proclamation 9984 suspending entry into the United States of foreign nationals who were physically present in the People’s Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau, within the 14 days preceding entry or attempted entry into the United States. U.S. citizens and lawful permanent residents are not subject to the proclamation. Some other exceptions include, but are not limited to: foreign diplomats traveling to the United States on A or G visas and certain family members of U.S. citizens or lawful permanent residents including spouses, minor children, parents (provided that his/her U.S. citizen or lawful permanent resident child is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or lawful permanent resident are unmarried and under the age of 21). The proclamation took effect on February 2, 2020 and will remain in effect until terminated by the President.
- On February 29, 2020, former President Trump signed Proclamation 9992 suspending entry into the United States of foreign nationals who were physically present in Iran within the 14 days preceding entry or attempted entry into the United States. U.S. citizens and lawful permanent residents are not subject to the proclamation. Some other exceptions include, but are not limited to: foreign diplomats traveling to the United States on A or G visas and certain family members of U.S. citizens or lawful permanent residents including spouses, minor children, parents (provided that his/her U.S. citizen or lawful permanent resident child is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or lawful permanent resident are unmarried and under the age of 21). This proclamation took effect on March 2, 2020 and will remain in effect until terminated by the President.
On March 2, 2021 the Secretary of State revised the qualifications for National Interest Exceptions for certain travelers from the Schengen Area, United Kingdom, and Ireland. Specifically, previous national interest determination regarding categories of travelers eligible for exceptions as related to the Schengen Area, United Kingdom, and Ireland were rescinded which covered certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents. The Secretary of State also made a new national interest determination covering certain travelers seeking to provide vital support for critical infrastructure.
H-1B Initial Electronic Registration Selection Process Completed-
On March 30, 2021 USCIS announced it had received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations (H-1B cap) including the advanced degree exemption (master’s cap). USCIS randomly selected from among the registrations properly submitted to reach the cap. USCIS advised that it then notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration. Registrants’ online accounts that continue to show “submitted” status remain eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
Two Final Rules may prospectively affect the H-1B classification, DHS’ ‘Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject Petitions’ and DOL’s ‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Foreign nationals in the United States.’ These rules have been subject to certain developments over the last several months-
The first Final Rule, ‘Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject Petitions’, amends the Department of Homeland Security’s regulations governing the process utilized by USCIS in selecting H-1B registrations for the filing of H-1B cap-subject petitions by first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment, beginning with OES wage level IV and proceed in descending order with OES wage levels III, II, and I. The final rule was published on January 8, 2021 and was set to go in effect on March 9, 2021, however, on February 8, 2021, the Department issued a new Final Rule ‘Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petitions; Delay of Effective Date’ delaying the rule’s effective date until December 31, 2021. Should this rule go into effect on December 31, 2021, USCIS will utilize this new selection process for the FY 2023 H-B numerical allocations.
The second Final Rule, ‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Foreign nationals in the United States,’ would modify the wage methodology the U.S. Department of Labor uses to set prevailing wage rates pertaining to certain immigrant and nonimmigrant programs, including the H-1B. This Final Rule was set to go into effect on March 15, 2021, however, on March 12, 2021, the Department of Labor published another Final Rule delaying the effective date from March 15, 2021 until May 14, 2021. On March 22, 2021 DOL proposed to further delay the effective date of the rule by eighteen months, or until November 14, 2022. DOL is inviting written comments on the proposed delay of the effective date which must be received by April 21, 2021. Should the Final Rule go into effect on November 14, 2022 as recently proposed, wage levels would generally increase. Per the DOL, it is adopting a phase-in approach to how the new wage levels will be applied to give employers and workers time to adapt to the change.
It is worth noting that other COVID-19 travel restrictions remain in place. Companies and individuals with ongoing or prospective immigration processes and their employees, colleagues or family members who may be affected by these recent immigration developments should consult with counsel on individual situations. Gunster’s Immigration Practice Group remains available to answer your questions.
If you have any questions, please contact Gunster Immigration attorneys Sarah Tobocman, Mariana Ribeiro, Beatriz Osorio, and Maria Romero.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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