Latest Developments in Immigration: Visa Ban Rescinded, Reinstatement of Visa Processing Abroad, and Supreme Court Decisions to Come

February 25, 2021

Rescission Of Presidential Proclamation 10014 – Travel Ban For Immigrant Visa Applicants

On February 24, President Biden issued a Proclamation revoking the immigrant visa ban that suspended foreign nationals’ entry to the United States in immigrant visa categories. Immigrant visas are issued exclusively at consular posts abroad to foreign nationals immigrating permanently to the United States. These individuals might be sponsored by family members or U.S. employers. In addition, the revocation also affects the thousands of Diversity Lottery applicants located outside the United States.

Key changes that are effective immediately:

  • Proclamation 10014 – the Immigrant visa ‘ban’ immediately revoked;

  • The Proclamation states that the ban prevents the U.S. from benefitting from global talent and prevents immediate relatives of U.S. citizens and other lawful permanent residents from reuniting with family members in the United States; and

  • Diversity lottery winners have also been prevented from entering the United States.

The ban initially issued by the previous administration in April 2020 was set to expire at the end of March 2021.

Foreign nationals legally in the United States have continued to maintain their eligibility to file for adjustment of status to permanent residence in the United States. No bar for such applications was set in place because the executive branch does not have authority over adjustment of status applicants currently in the United States. The executive branch has been deemed to have authority only over those seeking entry to the United States.

It is important to note that the rescission of the travel ban primarily affects family-based immigration and this ban does not revoke the work visa ban issued by the prior administration in June 2020. Proclamation 10052, banning certain temporary non-immigrant visa holders, including H-1, L-1 and J-1 visas holders is set to expire on March 31, 2021. 

Public Charge Rule To Be Heard By Supreme Court

The Supreme Court has agreed to hear arguments and determine the legality of the previous administration’s rule barring individuals from receiving permanent residence in the United States if they previously received public benefits or might likely become public charges upon immigrating permanently to the U.S. Legal challenges to this rule have amassed in the various federal court circuits. Announced on August 19, 2019, and effective in February 2020, the rule states that foreign nationals may be denied admission to the United States if they have received or are likely to receive government-issued public benefits. The public charge rule applies to those likely to receive Medicaid, cash assistance and federal housing benefits. Immigration advocates are expected to argue that the rule violates the federal immigration and administrative regulations by incorrectly expanding the legal definition of public charge.

USCIS Announces Expansion Of Premium Processing Option For E-3 Australian Citizens

The E-3 non-immigrant visa, applying exclusively to Australian citizens who are employed in specialty occupations in the United States, now have the option to ‘premium process’ their non-immigrant petitions. On February 24, U.S. Citizenship and Immigration Services (USCIS) announced that it would, effective immediately, permit E3 visa holders to fast track, or ‘premium process’ their petition extension or change of employer requests with the agency. This lifts the burden for Australians currently physically located in the United States who may not be able to travel to US consular posts abroad to secure new visa stamps for purposes of continuing their current employment or seeking new employment. The premium processing option gives petition filers the option to remit an additional premium processing government-mandated fee of $2,500 to assure that the government decision is rendered within 15 calendar days and permits foreign nationals, upon issuance of new petition approval, to commence new employment without the need to visit a consular post to secure authorization to work for a new U.S. employer.

The E-3 category requires certain criteria including, the foreign national be a national of Australia, possess a legitimate offer of employment, possess the requisite education or other qualifying credentials to fulfill the U.S. wage offer, and the position that they fill a position that the U.S. government must be deemed to qualify for a specialty occupation. The definition used for E-3 specialty occupation visa holders is similar to that of the H-1B visa definition and requires that the foreign national hold knowledge generally held through the attainment of a bachelor’s or higher degree as a minimum for entry into the occupation in the United States.

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