February 2021 Newsletter

February 2021 Newsletter



  • What is happening?

USCIS’ premium processing service is now available for E-3 Petitions (Form I-129) for extension or change of status.

  • Who does it impact?

E-3 Petitions filed with a USCIS Service Center in the U.S. including those requesting extension of their current E-3 status or a change to E-3 status, within the U.S.

  1. E-3 classification applies to Australian nationals coming to the U.S. to work in a specialty occupation, who: 1) have a legitimate U.S. job offer, 2) will fill a position that qualifies as a specialty occupation, and 3) are qualified for the specialty occupation job (possess the necessary academic or other requisite credentials) 
  • Where are E-3 applicants NOT impacted?

Eligible Australian nationals outside of the U.S. seeking to obtain an E-3 visa prior to entering or reentering the U.S. These applicants apply directly with a U.S. Consulate or Embassy abroad. Premium processing only applies to cases filed with a USCIS Service Center inside the United States.

More on this:

On February 24th, U.S. Citizenship and Immigration Services (USCIS) announced that premium processing is now available for E-3 petitions, effective immediately. This is an expansion of the employment-based case types that are eligible to request premium processing.

USCIS Premium Processing Service is an optional expedite service whereby eligible petitioners may pay an additional government fee ($2,500) for a reduced adjudication timeline of 15 days for certain eligible case types.

H-1B CAP FY 2022


  • For this year’s H-1B lottery, the electronic registration period for participation in the lottery will run from March 9, 2021 to March 25, 2021
  • USCIS will notify employers of selection by March 31, 2021, and
  • The corresponding H-1B petition filing window for selected registrants will begin on April 1, 2021.
  • The H-1B Electronic Registration Process will procced as it did last year.

Upcoming MT Webinar:

  • On Friday, February 26th at 11:00AM PST, MT attorneys will be hosting a complementary webinar “How to Prepare for the H-1B Lottery Registration,” to explain the process and provide a comprehensive overview of the H-1B registration system, guidance for employer action items, expectations, workflow, and anticipated timeline.

Please register to attend (Webinar Registration)

The webinar will be recorded, and the presentation materials will be made available for clients.

Overview of Current Conditions:

Non-essential international travel is not recommended during the pandemic. Conditions are changing fast, frequently, and abruptly, particularly so in recent weeks. There are numerous travel and visa restrictions globally and many countries remain on complete lockdown. Staffing at U.S. consular posts is limited and routine visa services have been suspended and reinstated inconsistently – each post decides whether and when to resume routine visa processing, what type of visa processing to prioritize, and how to submit emergency appointment requests and applications to qualify for a National Interest Exception to the COVID-19 related visa ban.

U.S. COVID-related travel restrictions still in effect include:

  • Travel from certain countries within 14 days:
  1. Several COVID-related Presidential Proclamations barring U.S. entry of noncitizens who have been to any of the following countries within 14 days of seeking admission to the U.S.: China, Iran, Brazil, the UK, Ireland, the 26 European countries comprising the Schengen Area, and South Africa (unless traveler meets certain national interest exceptions or exemptions), remain in effect.
  2. Timing: travel bans will be reviewed at least every 30 days and will remain in place until terminated by the President.    
  • US-Canada & US-Mexico Border Closures:

The Department of Homeland Security restrictions on non-essential travel into the U.S. via land border from Mexico and Canada remain in effect as of February 23, 2021:

  • Essential travel includes individuals traveling to the U.S. for work, school, medical treatment, or business*, and any travel by US citizens and US lawful permanent residents

*Foreign nationals traveling for one of these purposes should be prepared at the border to document, and answer detailed questions about, their intended purpose (for example, if traveling for work, proof of planned business or employment activities in the U.S.)

  • By contrast, travel for recreation or tourism is considered “non-essential” and is not permitted at land borders
  • These particular restrictions do NOT apply to air travel and some sea travel
  • Increased CBP scrutiny, additional and detailed questioning at the border, and increased risk of rejection/non-admittance is expected to continue during this time.
  • Timing: restrictions are scheduled to remain in effect until at least March 21, 2021 unless otherwise rescinded by the Department of Homeland Security. 
  • Nonimmigrant Visa Ban:

Proclamation suspending issuance of new H-1B, L-1, and J-1 visa stamps for certain noncitizens (with exemptions such as if the petitioning employer is a member of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, or TechNet)

  • COVID Test Results:
  1. As of January 26, 2021, all air passengers arriving in the U.S., regardless of immigration status, are required to test negative for the coronavirus within 72 hours of travel departure.

MT Perspective & Considerations:

  • MT urges clients to contact their immigration legal team and consult with an attorney prior to planning any international travel for the foreseeable future and throughout the pandemic.
  • While situations remain fluid, authorities around the world are still broadly recommending against non-essential travel.

Related Resources:

  • For the most up-to-date travel warnings and information on travel risks, refer to the Dept. of States’ travel advisories
  • For updated country-specific travel restrictions and information, refer to the Dept. of States’ COVID-19 specific information page
  • And for updates on coronavirus-related travel restrictions, immigration developments, and MT’s perspective, please visit our COVID-19 info page.

President Biden signed a total of 32 Executive Orders during his first 30 days in office, several aimed at course-correcting and re-centering the tone of U.S. immigration policy and priorities.  

The Administration describes these executive actions as “centered on the basic premise that America is safer, stronger, and more prosperous with a fair, orderly and humane immigration system that welcomes immigrants, keeps families together, and allows people—both newly arrived immigrants and people who have lived here for generations—to more fully contribute to our country” per a related White House Fact Sheet.

Executive Orders – Snapshot:

  • Executive Order 14005 revokes the 2017 “Buy America, Hire America” Order that was a foundational pillar of the Trump administration’s approach to legal immigration and a major impetus for increased scrutiny, RFE, and denial rates for employer-sponsored visa petitions since its signing in 2017.
  • Executive Order 14012 directs a comprehensive review of agency rules, policies, and guidance and formulation of a subsequent plan within 90 days. This seeks in large part to address the voluminous and layered policy changes – of the over 1,000 policy changes made by the Trump administration – that impact legal immigration. The Order also creates a task force on new American Citizens; seeks to increase federal, state, and local collaboration on immigration; and orders immediate review of agency actions on “public charge” inadmissibility, which allows immigration officers to deny green cards to applicants found likely to need public assistance based on past use of public benefits and other factors.
  • Executive Order 14011 creates an interagency task force to reunify parents and children separated under the Trump administration’s “zero tolerance” policy, and sets a June 2, 2021 deadline for an initial report of findings and recommendations.
  • Executive Order 14010 requires development of a comprehensive strategy to address the root causes of migration throughout North and Central America, a regional framework to facilitate intergovernmental collaboration, and measures to improve and restore protections for asylum seekers.

In other transition news:

  • New Leadership at DHS and DOS

Recent weeks have also seen the swearing in of key Cabinet-level officials at the helm of immigration governance:

  • Secretary of Homeland Security, Alejandro Mayorkas is the first immigrant to lead the Department of Homeland Security (DHS), and also served as Director of USCIS then Deputy Secretary of Homeland Security during the Obama administration.
  • Secretary of State, Antony Blinken will lead the State Department, where he served most recently as the Deputy Secretary of State under President Obama).


The US Citizenship Act of 2021 (HR 1177) embodying President Biden’s legislative proposals, was introduced into the House on February 18th with an identical companion bill released in the Senate on February 22nd. The legislation aims “to provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.” Congress has not passed a major immigration bill since 1986.

Snapshot of select changes for employment-based immigration:

  • Adjustment of Status (AOS/ “green card”) numbers and priority date backlog:
  1. Increase employment-based green card availability raising numbers from 140,000 to 170,000 annually and recaptures unused numbers from past years since 1992;
  2. Allow individuals with approved I-140 petitions who have been waiting for more than 10 years to adjust, to apply for AOS;
  3. Eliminate per-country numerical caps on green cards in the future;
  4. Exempt U.S. doctoral STEM graduates from the numerical caps;
  5. Give the Department of Homeland Security (DHS) vague authority to temporarily limit adjustment and entry of EB-2 and EB-3 immigrants based on macroeconomic conditions such as increased unemployment.
  • Nonimmigrant (temporary) visas:
  1. Codify EAD work authorization for H-4 spouses and children;
  2. Exempt F-1 students from dual intent restrictions;
  3. Enable F-1, L-1, and O-1 visa holders a route to a green card similar to that available to H-1B holders (including one year extensions of work authorization for these individuals if an I-140 or PERM has been pending for more than one year)
  4. Authorize DHS and DOL to prioritize the distribution of H-1B numbers based on salary. This would essentially codify the controversial H-1B wage-based selection process rule introduced by the Trump Administration (which was scheduled to take effect March 9th but postponed, pending further review, until at least December 31, 2021 following a directive from President Biden).
  • Other provisions for immigration more broadly:
  1. Introduces an eight-year pathway to citizenship for 11 million undocumented immigrants.
  2. Would change the term “alien” to “noncitizen” in the country’s legal code, the Immigration and Nationality Act

Now what?

  • Any significant bipartisan support for the bill is unlikely, not to mention the 60 vote threshold required to pass. Although odds for the bill progressing in its entirety are bleak, this is a critical early step moving the ball forward for the new Administration’s ambitious immigration agenda and defining the parameters that will inform the coming debate.
  • As a more likely and typical route historically, congress may prioritize and move certain pieces of the bill forward in the near term, while in parallel pushing for more comprehensive action.

MT continues to actively advocate for immigration reform through direct and indirect involvement in civic affairs at the local, state, and federal levels; and we will continue to keep clients informed of major developments in regulatory, legislative, and policy changes impacting immigration.

USCIS announced that, on May 14, 2021, it will dispose of E-Verify records that are more than 10 years old, including records dated on or before December 31, 2010.

E-Verify employers have until May 14, 2021, to download case information if they wish to retain information about these E-Verify cases.

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