Cyrus Mehta

What Happens to a Lawful Permanent Resident Who Has Been Stranded For Over One Year Abroad and the Green Card Validity Has Expired?  

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By Cyrus D. Mehta and Kaitlyn Box*

COVID-related restrictions have caused difficulties for many noncitizens traveling abroad during the pandemic, but lawful permanent residents (LPRs) who traveled overseas in recent months face a unique set of issues. Many LPRs who traveled overseas in the early days of the COVID-19 pandemic quickly became trapped there for the foreseeable future, either by travel restrictions that prohibited them from reentering the United States or because they or a family member contracted COVID-19. Recent news articles have discussed the plight of these LPRs who have not been able to return to the US within 180 days to the US from their last departure from the US

Our blog FAQ for Green Card Holders During the Covid-19 Period generated tremendous interest. This blog is addressed towards LPRs who have been overseas for more than one year and the ten year validity period on their green cards have expired.

As a background, an LPRs who have been absent from the United States for less than 180 days are not considered to be applicants for admission.  An LPR who returns to the United States after more than six months abroad will again be considered an applicant seeking admission under INA 101(a)(13)(C)(ii) and may face additional scrutiny, but is unlikely to be accused of abandonment, especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether the LPR is returning within or in excess of 180 days, there may be other grounds under which the LPR will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

Essentially, an LPR can be found to have abandoned that status regardless of the time spent abroad. The trip could have been under 180 or over 180 days. The key issue is to determine whether it was a temporary visit abroad. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) of what constitutes a temporary visit abroad is generally followed:

A trip is a temporary visit abroad if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

The Second Circuit in Ahmed v .Ashcroft, 286 F.3d 611(2d Cir. 2002) with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales, 414 F.3d 746 (7th Cir. 2005) held that LPR status was not abandoned where an LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

After LPRs have spent more than a year outside the United States, their green card document (Form I-551) is technically no longer valid. There is a common misperception that this situation results in an automatic loss of permanent resident status, but an individual is still an LPR until they are found to have abandoned their permanent residence in the United States. Therefore, the test set forth in Singh v. Reno and other cases still needs to be followed to determine whether the LPR’s visit abroad was temporary or not.  The burden is still on the government to prove through clear and convincing evidence that the LPR has abandoned permanent resident status. See, e.g Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008) and  Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

LPRs who have been abroad for more than a year may be able to apply for a apply for a Returning Resident (SB-1) Visa at a U.S. Consulate. In order to apply for an SB-1 visa, LPRs will still be required to demonstrate that they have not abandoned residence in the United States, and should explain that they were trapped outside the country due to the pandemic. However, U.S. consulates have been hesitant to issue SB-1 visas, even before the pandemic. It appears that since the pandemic, US consulates have not been entertaining SB-1. LPRs who wish to try for an SB-1 visa should check the website of the relevant U.S. embassy or consulate for guidance. The U.S. Embassy and Consulates in India website, for example, provides some instruction on how to apply for an SB-1 visa.  Alternatively, an LPR whose green card date is still valid could attempt to return to the U.S. anyway and assert at the port of entry that she has not abandoned permanent residence in the United States. Under INA § 211(b), CBP has the statutory authority to provide a waiver to a returning LPR who no longer has a valid green card document. It may be helpful for an LPR who is returning to the U.S. after more than a year abroad to have in hand documentary evidence that they have not abandoned permanent resident status. Documents such as: U.S. income tax returns, evidence of owning or leasing a residence in the U.S., bank statements or other proof of assets in the U.S., a letter or pay stubs from a U.S. employer, evidence of family ties in the U.S., proof of past medical treatments or doctor visits in the U.S., or evidence of membership in religious, professional, or community organizations in the U.S., to provide a few examples, can help stave off any allegation of abandonment of permanent resident status at the port of entry.

If the 10-year expiration date on the green card document has passed, the situation becomes more complicated. However, LPRs whose green card has expired or is about to expire may be able to file Form I-90 to renew their green card. The paper version of Form I-90 contains does not prohibit applicants who are outside the United States from submitting the form, so LPRs may be able to try renewing their green card even if they are stranded in India. USCIS announced in January 2021 that an I-90 receipt notice can be used in conjunction with an expired green card as proof of lawful permanent resident status, so filing an I-90 and obtaining a receipt notice may provide LPRs with a basis to reenter the United States.

Several things can happen when an LPR whose green card document has passed attempts to reenter the United States. For one, the LPR can complete Form I-193, and may be waived into the United States by CBP pursuant to INA § 211(b), if it is determined that they have not abandoned LPR status. Otherwise, the LPR will be placed into removal proceedings pursuant to INA § 212(a)(7)(A) as an arriving alien. LPRs who are placed into removal proceedings will need to make the case again that they have not abandoned permanent resident status, this time before an immigration judge. The burden of proof in this case is still on the government, and the LPR remains an LPR until a final removal order is issued. Final removal orders may be appealed to the BIA, and then to a circuit court.

An LPR who has an immediate relative who is a U.S. citizen, such as a spouse or a child over the age of 21, may be able to apply for adjustment of status all over again as adjustment can generally serve as a form of relief from removal. See Matter of Rainford, 20 I.&N. Dec. 598 (BIA 1992).  Note, however, that while there is no statutory bar on LPR re-adjustments, the USCIS may refuse to process such adjustments as a discretionary matter. LPRs who wish to take the lowest risk path can  be sponsored again while they are overseas if they have a basis for permanent resident status, such as a family member who can file an I-130 petition, particularly a U.S. citizen or LPR spouse or a U.S. citizen child over the age of 21.  Alternatively, one could be sponsored again through an employment-based category such as a multinational executive or manager under the employment-based first preference. Prior to processing for an immigrant visa, they must file Form I-407 to abandon their green card.

It is of course advisable that an LPR do everything to avoid being in the situation of remaining outside the US for more than one year and after the green card validity has expired. The LPR should apply for a reentry permit that would allow them to remain outside for the US for two years, although Form I-131 must be filed while the LPR is in the US. If the LPR has not filed for the reentry permit while in the US, then the next best approach is to try to reenter the US within 1 year from the last departure. If the LPR has remained outside the US for more than one year, LPR status has not been automatically lost and this blog provides a roadmap to still assert LPR status, although one trying this strategy should also be aware of the risks and pitfalls.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Coping with Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application – Part 2

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By Cyrus Mehta and Isabel Rajabzadeh*

Although H-4 and L-2 extensions continue to be delayed since our  last blog  “Coping with Delays Facing H-4 and L-2 Spouses”,  we highlight another issue,  which adds further hardship for H-4 and L-2 spouses faced with unjust processing delays. In October 2020, the EB-3 Dates for Filing in the Visa Bulletin advanced significantly, which allowed many born in India to file Form I-485, Adjustment of Status (AOS) applications. The surge in AOS cases, coupled with the H-4/L-2 processing delays, have left many with the inability to travel abroad as they await both their H-4/L-2 extension and Advance Parole (AP) processing. This blog tackles the threat to abandonment of AOS when traveling internationally while AP and H-4/L-2 are processing. We also discuss the complex interplay with employment authorization for H-4/L-2 spouses who have pending AOS applications.

Preserving H-4 and L-2 Status When an AOS is Pending

Since the H-1B and L visas allow for dual intent, it is possible to maintain H or L nonimmigrant status while an AOS application for permanent residence has been filed.

Due to the delays in the processing of H-4/L-2 extensions and requests for EAD, travelling abroad poses a conundrum. In order to preserve the AOS that is still processing, one needs to have either AP or valid H-4/L-2 status before leaving. Accordingly, 8 CFR 245.2(a)(4)(ii)(B)-(C) outlines two distinct pathways. Under (B), it allows those with approved AP to leave the country and then subsequently return in AP without abandoning their AOS, absent any specific situations outlined in the regulation. Under (C), the same is true for those who leave in H-4/L-2 status and return in H-4/L-2.

In 2000, the Cronin Memo was published and clarified that although an H-1B or L is considered  to be paroled after entering the United States via AP, he/she is still able to apply for an extension of H-1B or L if there was a valid and approved petition. Upon the granting of the H-1B or L extension, the grant of parole would be terminated, and the H-1B applicant would then be admitted into the relevant H-1B status. Although the Cronin Memo contemplates one who is already in H-1B and L status before traveling abroad and being paroled via AP, it could also apply to one who has a pending extension of  H-1B or L-1 status application and who traveled abroad under AP and was paroled into the US. Likewise, upon the approval of the H-1B or L-1 request, the parole would be terminated, and the beneficiary would be admitted in H-1B or L status. This allows the H-1B beneficiary to travel abroad while simultaneously preserving the AOS when both the H-1B and AOS are pending.

There is an inherent vagueness as to whether the Cronin memo applies to derivatives since H-4s and L-2s are not mentioned in the memo in respect to this issue. One may however argue, through anecdotal experience, that the Cronin Memo should apply to H-4s and L-2s and therefore, the H-4/L-2 should be able to enter the United States in AP and be able to switch to H-4/L-2 status once the H-4/L-2 extension is approved.

Preserving Adjustment of Status When Advanced Parole and H-4 are Pending 

What happens when an H-4 has a pending AOS and has not received AP or H-4 approval but wants to travel based on an emergency? This issue is two-fold and is specifically applicable to those whose prior H-4/L-2 statuses have expired and have timely filed their extensions but still await processing. As mentioned before in our prior blog, although the H-4 can get a visa stamp at a US consulate, the AOS may be deemed abandoned if the H-4 left the US without H-4 status or AP.

In this scenario, the only recourse for the H-4 is to apply for an emergency AP by calling the USCIS 800 number to schedule an appointment with the local USCIS office, however, it is not definite that one will be able to connect to a live-person, let alone convince the USCIS that the emergency qualifies for expeditious AP processing.

Does an L-2 Spouse Need an EAD?  

Out of the many downfalls of the H-4/L-2 processing delays, one of the most significant is the Employment Authorization Document (EAD) processing gaps afflicting families around the nation. At large, this issue has subjected many spouses and their families to financial struggle, and it remains a leading issue that the USCIS and the Biden administration must immediately resolve. The hardship is compounded by the fact that there are delays in the processing of the EAD under both the AOS and the H-4/L-2.  Nonetheless, there may be an arguable legal basis for an L-2 spouse to engage in employment without obtaining an EAD.

In the Matter of Do Kyung Lee, the Board of Immigration Appeals (BIA) held that employment authorization is incident to E-2 status. INA 214(e)(6) explicitly states that an E-2 spouse shall be authorized to engage in employment.  In this unpublished  decision, the BIA reasoned that the regulation at 8 CFR 274a.12(c)(2) only specified that the dependent spouse and child of an E-1 visa holder must apply for work authorization, but the same regulation did not specifically state that the spouse of an E-2 must do the same. The Court held that since INA 214(e)(6) specifically authorized the E-2 spouse to engage in employment, the E-2 spouse’s failure to apply for an EAD did not result in a violation of status. Based on the reasoning of this BIA decision, the same logic can be applied to L-2 spouses since INA 214(c)(2)(E) explicitly authorizes L-2 spouses to engage in employment. The regulations at 8 CFR 274a.12 do not have a specific category for L-2 spouses, and USCIS requires L-2 spouses to use the catchall reserved provision under 8 CFR 274a.12(a)(18).

Nevertheless, this is still a gray area and E-2 and L-2 spouses are therefore still recommended to apply for an EAD. Even if the reasoning of this unpublished BIA decision is accepted by the USCIS, a lack of EAD could potentially trigger I-9 noncompliance issues with respect to the employer as ICE may not recognize the holding of an unpublished BIA decision.

The reasoning of this BIA decision is not appliable to H-4 spouses as there is no explicit INA provision that specifically authorizes H-4 spouses to engage in employment. The Department of Homeland Security (DHS) under the Obama administration specifically created a regulation which authorizes EAD for an H-4 under 8 CFR 274a.12(c)(26), based on implied authority in the INA to issue work authorization to any class of noncitizens. The Trump administration tried to unsuccessfully rescind the rule as it was hostile towards H-4 EADs, but could not get it past the Office of Management and Budget. The Trump administration then imposed the biometric requirement for every I-539 extension, which in turn delayed the grant of the H-4 EAD. The pandemic that followed in March 2020 caused further delays and backlogs.

Conclusion

We reiterate our request that the Biden administration remove the biometric requirement imposed by the prior Trump administration when an I-539 application is filed. The justification by the Trump administration, as revealed in a recent WSJ article, that the biometric requirement was necessary so that dependents did not misrepresent themselves is spurious. Until 2019, there was never a biometric requirement when dependents filed I-539s, and there were no widespread incidents of such misrepresentations. Many of these dependents were already vetted when they obtained H-4 and L-2 visa stamps at US consulates. Moreover, subjecting infants and toddlers seeking H-4 and L-2 extensions to this is downright cruel. Eliminating this unnecessary biometric requirement will go a long way in eliminating the delays facing H-2 and L-2 spouses as they can then be processed under the premium processing request filed through the principal spouse’s H-1B or L-1 petition. The DHS should also initiate premium processing for EAD requests since Congress authorized additional premium processing last year. Finally, since INA 214(c)(2)(E) explicitly authorizes an L-2 spouse to engage in employment, what is the need to require the L-2 spouse to go through the lengthy process of applying for an EAD? Under the logic of the BIA decision in Do Kyung Lee, an E-2 or L-2 spouse who engages in employment without an EAD will not be viewed as engaging in unauthorized employment. Therefore, even if the Biden administration cannot speed up EAD processing quickly, it can officially pronounce that L-2 and E-2 spouses need not obtain an EAD.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Coping with Delays Facing H-4 and L-2 Spouses

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By Cyrus D. Mehta & Isabel Rajabzadeh*

 In March 2019, the Trump administration implemented a new biometrics requirement for some employment-based and nonimmigrant dependents. H-4 and L-2 dependents must complete biometrics each time an extension of status is filed on Form I-539. This superfluous mandate, paired with the already backlogged queue due to Covid-19 processing delays, has resulted in dependent extensions being processed months behind their principal applicants. Since most of the people impacted by the delays are H-4 spouses, we refer more to them than L-2s although both face similar issues.

Spousal processing times are left estranged with some H-4 extensions taking over a year while the H-1B option of 15-calendar-day premium processing remains in full effect. To shed light on how absurd these delays truly are, it is crucial to note that most dependents have at one time or another provided biometrics in the past to the U.S. Citizenship and Immigration Services (USCIS) for an unrelated immigration benefit, or during visa consular processing. Nonetheless, spouses are losing their work authorization and are also inhibited from travelling abroad while their H-4 extension requests are pending because of these illogical delays.

There is no need for this Trump era senseless H-4 and L-2 biometrics requirement to remain as it was part of the prior administration’s effort to thwart legal immigration. The Biden administration should not only remove this impediment, but it should also implement premium processing of H-4 extensions and work authorization (EAD) requests. We refer you to a prior blog, “Work Authorization for H-4 Spouses: The Experience Thus Far” that discusses the eligible requirement for EADs. Since Congress authorized additional premium processing last year, which the USCIS has not implemented yet, we urge the agency to act now.

This processing limbo has caused much confusion among the nonimmigrant population. As litigation ensues over the delays around the country, we have outlined some of our most asked H-4 dependent related questions below.

Traveling Abroad While H-4/L-2 Is Pending and H-1B/L-1 principal has a valid I-94

While consular posts continue to operate at a limited capacity, it is not always ideal to travel outside of the United States in order to receive an H-4 visa stamp. Still, we provide some guidance below when travel opportunities arise.

The H-4 extension request can remain pending even if the spouse leaves the United States. The same is also true with respect to the request for an employment authorization document (EAD) through the filing of the I-765. However, if an H-4 spouse leaves the United States before doing his/her biometrics, and the USCIS issues a biometrics appointment, the spouse can seek postponement and complete the biometrics when he/she returns to the United States.

Travel during an extension request should be distinguished from travel during a request for change of status. If one departs the United States while the change of status to H-4 is pending, the underlying I-539 application will get denied.

Whether the H-4 is processed abroad or by the USCIS, it is always important to review the expiration of the I-94. The I-94 is attached to H-4 approval notices (I-797) when H-4s are approved by the USCIS. If the H-4 spouse either obtains their H-4 visa stamp abroad or travels outside of the United States, the new I-94 will appear on the Customs and Border Protection (CBP) I-94 portal, which should always be reviewed upon entering the United States.

Please remember that while visas allow a person to travel to a port of entry, the I-94 grants the actual status and permits the person to stay in the United States. The CBP has made mistakes on I-94s in the past, which is why reviewing each I-94 is even more critical. If the CBP made a mistake, correcting the I-94 may be as simple as contacting the CBP and requesting the correction. The CBP may also issue an I-94 date that matches the validity period of the underlying passport. Therefore, it is important to ensure that the passport is renewed prior to travel abroad in order to avoid a mismatch in the I-94 validity date and the H-4 visa, or the H-1B approval notice.

Lastly, if the H-4 spouse’s I-94 does not match the visa expiry date, it is important to plan to file an I-539 extension request in advance of the I-94 expiration. Alternatively, the spouse can travel abroad and be admitted.

 No Status while H-4 Is Pending vs. Accrual of Unlawful Status

Most importantly, H-4 spouses must not accrue unlawful status in the United States. H-4 spouses have been falling out of status because of the long processing delays, however, H-4 spouses do not begin to accrue unlawful status as long as the H-4 extension (form I-539) was filed before the H-4 status (the I-94) expiration date. During the pendency of the I-539 request, the applicant is authorized to remain in the United States even if they do not have the underlying H-4 status. Once the extension request is approved, the spouse’s H-4 status is restored.  If, for whatever reason, the H-4 extension is denied, the H-4 spouse will start accruing unlawful presence for the purpose of triggering the 3 or 10 year bars under INA 212(a)(9)(B)(i)(I) and (II). If the spouse has been unlawfully present for more than 180 days, they will face the three-year bar once they depart the United States. Therefore, it is incredibly important to not accrue unlawful status.

If the spouse wants to file a motion to reopen or reconsider upon a denial, the spouse must consider leaving within 180 days of the denial if the case has not been reopened. He/she would risk facing a 3 or 10 year bar if they leave after 180 days, assuming the motion is not granted.

Conclusion

Although it is understandable that the Biden administration has been left with a big backlog of H-4 and L-2 cases from the Trump administration, the Biden administration can alleviate the backlog by immediately lifting the biometrics requirement whenever an I-539 is filed. This would be a good first step as the H-4 extension will get processed along with the H-1B extension under premium processing. Then, premium processing should be introduced for EAD processing. The additional premium fees that applicants will gladly pay can be used to add more resources to expedite the processing of cases. Of course, all this is still a band-aid since the ultimate solution is to alleviate the backlogs in the employment-based preferences by adding more visa numbers as well as exempting the counting of certain immigrants such as dependents, which is part of Biden’s US Citizenship Act of 2021. Even if the prospects of the passage of the entire bill are unlikely, the provisions that will alleviate the backlogs in the family and employment visa system must be pushed along with helping Dreamers and TPS applicants in the American Dream and Promise Act of 2021.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice.)

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

Cyrus Mehta

End the Arbitrary H-1B Lottery and Visa Quotas – and other practical considerations for the winners!

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By Cyrus D. Mehta and Kaitlyn Box*

On March 30, 2021, USCIS announced that it had received sufficient H-1B registrations during the initial period to reach the Fiscal Year 2022 cap, including Master’s Cap registrations. All prospective petitioners whose registrations were selected should now have been notified. These petitioners may file H-1B petitions for the selected beneficiaries beginning on April 1, 2021.  At this time, many petitioners are seeing that less than 1/3 of their registrations have been selected, a remarkably low selection rate.  The selections for a total of 85,000 H-1B slots were made out of a record number of what is believed to be over 300,000 total registrations.

This lottery system is an unfair barrier to U.S. employers who rely on the H-1B visa program to employ highly-skilled workers. Subjecting employers to the game of chance that is the H-1B lottery renders the process of planning for the future and meeting staffing needs unnecessarily complex for U.S. employers, particularly when the selection rates are as low as this year’s selection numbers. In fields like the tech industry, where the need for highly-skilled workers exceeds the number of qualified U.S. workers, the unduly restrictive cap numbers hinder companies from being able to meet demand and remain competitive in the global market. It is also highly unfair for both employers and the foreign workers they wish to hire to first be fortunate enough to be selected in a lottery, and then have to wait until October 1 to commence employment.

The only way to ensure that the United States continues to attract the best and brightest talent worldwide is to eliminate quotas and lotteries from the H-1B program. As discusses by Stuart Anderson in a recent Forbes article, highly-skilled noncitizen workers promote innovation and economic growth in U.S. markets. Even the oft-maligned IT consulting companies, which employ high numbers of H-1B workers, serve a critical role in the U.S. economy by providing reliable and inventive IT solutions to U.S. companies. Employing H-1B workers allows consulting companies flexibility, as well as the ability to provide top talent at affordable rates and respond to changes in the market. Though sometimes pejoratively referred to as “job shops”, IT consulting companies, in truth, promote ingenuity by providing a source of technical expertise that can quickly respond to the evolving needs of the U.S. market.

Some have suggested that the solution is to allocate H-1B visas to the highest wage earners but this system, articulated in the Trump administration’s H-1B lottery final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions”, worsens the problems with the H-1B visa program rather than solving them. As we have discussed in a prior blog, a wage based preference system would practically foreclose numerous categories of noncitizens workers who are highly skilled but do not earn overly high salaries from pursuing the H-1B visa as an option. Entry level workers, for example, including talented graduates of U.S. universities, have the potential to greatly contribute to the U.S. economy over the course of their career, but are not likely to be paid extremely high wages. Entrepreneurs who start their own companies bring innovative businesses to the United States and create jobs if they are successful, but their startups may not be able to afford to pay them an overly high wage. Similarly, employees of non-profit organizations tend to command modest salaries, but perform meaningful and significant work in the United States. Allocating H-1B workers to the highest earners will, in the long run, deter highly-skilled noncitizens from pursuing employment in the United States, which will be detrimental to the United States’ economy and competitive advantage in the global market. And even if the lottery is skewed towards those offered the highest wages in the occupation, it still continues to remain a game of chance.

Although some affiliated with respectable think tanks like the Economic Policy Institute attack the H-1B as a source of cheap labor, they are wrong. Daniel Costa and Ron Hiro of the Economic Policy Institute, for example, suggest that H-1B employers “use the program to pay migrant workers well below market wages”, but a recent Center of Growth and Opportunity paper suggests that skilled immigrants holding temporary work visas have a wage premium of 29.5 percent compared to similar natives. H-1B lotteries, whether quota or wage based, limit the United States’ ability to attract the most skilled foreign workers. Those who are truly concerned for the wellbeing of the U.S. economy understand the key role that highly skilled foreign workers play and would want to encourage top talent from all over the world to come to the United States. One obstacle to H-1B workers was already removed when Proclamation 10052, which suspended the entry into the U.S. of many H-1B and other nonimmigrants, was allowed to lapse on March 31, 2021. This Trump-era ban further obstructed the flow of skills into the United States. Ironically, it also impeded the ability of last year’s lottery winners to come to the United States but this year’s winners with approved H-1B petitions will not be impacted by the Proclamation and last year’s winners may also seek visa appointments. Even with the expiration of the Proclamation, however, it is unlikely that H-1B visa applications will immediately begin being processed, as many U.S. consulates are still not fully operational due to the pandemic. DOS will prioritize the applications of applicants who have not yet been interviewed or scheduled for an interview, and invites individuals who were refused a visa due to the Proclamation to reapply.

Abolishing the H-1B lottery is the surest way to ensure free entry of talented and skilled workers into the United States.  The reason for the lottery is because there is an arbitrary limit of 65,000 visa and an additional 20,000 for master’s degree holders that have no bearing on economic reality.  Similarly, these same H-1B workers who get sponsored for green cards are subject to unrealistic quotas in the India EB-2 and EB-3s resulting in decade long backlogs, thus depriving them of obtaining permanent residency. There is no basis for quotas on H-1B visas or immigrant visas. As pointed out in a Forbes article, unemployment rates in H-1B occupations like computer and mathematical fields were only 2.4% at the beginning of 2021, illustrating that H-1B employees are not pushing U.S. workers out of the labor market. Lotteries and quotas have no place in a modern immigration system. There should be a free flow of skills and talent into the US.

It remains to be seen whether another H-1B lottery will be conducted in August, as was the case last year. If the case was selected under the lottery, the online account will indicate “Selected.” If the case shows “Submitted,” it means that it is still eligible for selection in a subsequent lottery during this fiscal year. If it shows “Denied” it means that multiple registrations were submitted for the same registrant. If the payment was declined it will show “Invalidated-Failed Payment.” In the meantime, petitioners who were selected can begin filing Form I-129 from April 1 to June 30, 2021. They will only be eligible to start employment in H-1B status on October 1, 2021, and if the foreign national is in the US they must ensure that they are maintaining status.  Those who are on F-1 Optional Practical Training, and if their OPT will expire prior to June 30, 2021, should file the I-129 prior to expiration so that they can take advantage of the Cap Gap till September 30, 2021. USCIS will begin accepting exclusively the new (3/10/2021) version of Form 1-129 on July 1, 2021. Until then, older versions of the form may still be submitted. Also note that Question 5 in Supplement H on page 13 of Form I-129 must be completed for H-1B Cap-subject petitions.

(This blog is for informational purposes and should not be considered as a substitute for legal advice)

 

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.