Month: March 2021

The U.S. Department of State announced late last week that consular officers have an expanded ability to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same visa classification as they currently hold. The prior policy allowed for an interview waiver for individuals whose nonimmigrant visa expires within 24 months. The current, revised policy allows for an interview waiver for individuals whose nonimmigrant visa expires within 48 months. This expanded policy is in effect now through December 31, 2021.

This is a positive change to nonimmigrant consular processing that will allow for more streamlined visa processing as well as will reduce the risk of COVID transmission as fewer visa applicants will need to physically visit U.S. consulates and embassies for in-person interviews. Visa applicants who believe they may be eligible for an interview waiver should consult the website of the U.S. consulate or embassy they will be renewing through for further instructions and eligibility information.

The COVID-19 pandemic has resulted in the issuance of several regional travel bans that apply to foreign nationals who have been physically present in a particular country within 14 days of seeking to enter the United States. Individuals who have been physically present in counties such as the Schengen area, the UK and Ireland are thus not allowed to enter the United States unless they qualify for an exception to the ban.

As of March 2, 2021, the U.S. Department of State revised its policy regarding eligibility for a National Interest Exception for travelers from the Schengen area, the UK and Ireland. Unfortunately, this updated National Interest Exception policy is more restrictive than the previous standard. Prior to March 2, 2021 European travelers such as technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents subject to the travel ban needed to show that their travel would contribute substantially to the U.S. economy in order to qualify for an exception. The new post-March 2, 2021 standard enables travelers to qualify for a National Interest Exception if their travel will provide “vital support for critical infrastructure.” (Presidential Proclamation 10143). This heightened standard will make it more challenging for travelers to secure a National Interest Exception from U.S. Consulates and Embassies.

Therefore, as of March 2, 2021 the National Interest Exception policy for the Schengen area, the UK and Ireland encompasses the following classes of travelers seeking admission into the United States:

1. Travelers coming to the US to provide “vital support for critical infrastructure”
2. F-1 and M-1 students
3. J-1 students, journalists and academics

Individuals who fall into these categories may be considered for a National Interest Exception and admission into the United States. Until complete resumption of routine visa services, applicants who appear to be subject to entry restrictions related to COVID-19 will not be processed for a visa interview appointment unless the applicant also appears to be eligible for a National Interest Exception under the revised standard.

The Public Charge Rule is finally dead, as the Department of Homeland Security (DHS) has announced that it will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Public Charge Final Rule.  Consistent with Executive Order 14012 directing a comprehensive review of the rule, DHS determined that continuing to defend the rule is, “neither in the public interest nor an efficient use of limited government resources.”

DHS has announced that once the public charge rule is permanently vacated, it will be following the 1999 interim field guidance on the public charge inadmissibility provision, at which time the Form I-944 will no longer be required.

We will be updating our blog with the latest developments as we learn of them.

The FY 2022 H-1B registration period begins tomorrow, Tuesday, March 9, 2021 at 10am MT, and runs until Thursday, March 25, 2021 at 10am MT.  USCIS will notify the “winners” by March 31, 2021.  If your employee is “selected” to proceed with an H-1B (i.e. if you employee “wins the H-1B lottery”), then you must file your H-1B petition with USCIS between April 1, 2021 and June 30, 2021.

On March 5, 2021, USCIS provided tips on how to avoid the most common errors (creating the wrong type of USCIS online account and registering an employee more than once) in completing a registration for the H-1B cap. USCIS reminds employers to select “I am an H-1B Registrant” as the account type when setting up a registration account and provided guidance on how to avoid duplicate registrations for the same employee.  Click here for more information.