U.S. Departments of Homeland Security and Labor Issue Joint Rule Supplementing
H-2B Visa Cap
WASHINGTON—The Department of Homeland Security (DHS) and the Department of Labor (DOL) have published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year (FY) 2021 to employers who are likely to suffer irreparable harm without these additional workers. Of the supplemental visas, 6,000 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala.
DHS first announced the planned supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program on April 20, 2021. The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.
“Today’s joint rule helps American businesses and addresses the need for robust worker protections,” said Secretary of Homeland Security Alejandro N. Mayorkas. “For the first time, we are setting aside supplemental visas for noncitizens from Northern Triangle countries, in furtherance of President Biden’s and Vice President Harris’ direction to expand legal pathways for protection and opportunity for individuals from those countries.”
“The temporary final rule is designed to prevent permanent and severe financial loss to U.S. employers by supplementing the congressionally mandated H-2B visa cap, takes into account feedback from American businesses, employer organizations, and labor representatives, and is one piece of the administration’s broader comprehensive framework for managing migration throughout North and Central America,” said USCIS Acting Director Tracy L. Renaud. “This rule incorporates several key provisions to ensure adequate safeguards for U.S. workers and H-2B workers. The rule requires that employers take additional steps to recruit U.S. workers, and provides for “portability,” which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved. Portability enables H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. DHS and DOL will also conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”
Starting May 25, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate their business is likely to suffer irreparable harm without a supplemental workforce. Additional details on eligibility and filing requirements are available in the temporary final rule and the Temporary Increase in H-2B Nonimmigrant Visas for FY 2021 webpage.
International Entrepreneur Parole
Last Reviewed/Updated: 05/10/2021
Under the International Entrepreneur Rule (IER), DHS may use its parole authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.
Under this final rule, entrepreneurs granted parole will be eligible to work only for their start-up business. The spouses and children of the foreign entrepreneur may also be eligible for parole. While spouses may apply for work authorization once present in the United States as parolees, the children are not eligible to work. IER parole may be granted for up to three entrepreneurs per start-up entity.
Entrepreneurs applying for parole under this rule must demonstrate that they:
- Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
- Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
- Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
- The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
- The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
- They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
- Otherwise merit a favorable exercise of discretion.
- A spouse or child of an entrepreneur applying for parole under this rule must demonstrate that he or she:
- Is independently eligible for parole based on significant public benefit or urgent humanitarian reasons; and
- Merits a favorable exercise of discretion.
How to Apply
Filing Form I-941, Application for Entrepreneur Rule
- You must file Form I-941, Application for Entrepreneur Parole, with the required fees (including biometric services fees), and supporting documentary evidence in accordance with 8 C.F.R. § 212.19 and the Form I-941 instructions. The filing fee for Form I-941 is $1,200 and the biometric services fee is $85.
- Filing and obtaining approval of a Form I-941 application under this rule will not, by itself, constitute a grant of parole. If your Form I-941 application is approved, you must visit a U.S. consulate abroad to obtain travel documentation (e.g., a boarding foil) before appearing at a U.S. port of entry for a final parole determination. A Canadian national traveling directly from Canada to a U.S. port of entry may present an approved I-941 at the U.S. port of entry without first obtaining travel documentation.
- Filing Form I-131, Application for Travel Document
- The spouse and children (unmarried, minor child under 21 years of age) of an entrepreneur submitting Form I-941 may file Form I-131, Application for Travel Document, with the required application fee and biometrics services fee, to request parole to accompany or join the entrepreneur. The Form I-131 may be filed concurrently with the Form I-941 or it may be filed separately.
- The filing fee for Form I-131 filed by the spouse or child of an entrepreneur is $575. A biometric services fee of $85 is required for applicants 14 through 79 years of age. For Part 2 Application Type, write “IER” in the margin of Form I-131. You must file Form I-131 with evidence demonstrating that you are the dependent spouse or child of an Entrepreneur Parolee or an Applicant for Entrepreneur Parole.
- Submit all of the following documents:
- A copy of a marriage certificate or birth certificate establishing your relationship to an Entrepreneur Parolee or an Applicant for Entrepreneur Parole.
- Unless filing the Form I-131 concurrently with the entrepreneur’s Form I-941, documentation indicating that the entrepreneur has a pending Form I-941 requesting parole, that such request was granted, or that the entrepreneur is a parolee. Such documentation may include a copy of:
- Form I-797, Notice of Action, indicating USCIS’ receipt of the entrepreneur’s Form I-941;
- The entrepreneur’s Form I-512L, Authorization for Parole of an Alien into the United States; or
- Form I-94, Arrival-Departure Record, indicating that the entrepreneur has been paroled into the United States.
- Filing Form I-765, Application for Employment Authorization
- If the Form I-131 is approved, and the spouse of the entrepreneur is paroled into the United States, the spouse may then apply for employment authorization by filing Form I-765, Application for Employment Authorization. Children of the entrepreneur will not be eligible to apply for employment authorization under this rule. For Item Number 27, Eligibility Category, enter “(C)(34).” File Form I-765 with evidence of your parole status, such as your Form I-94, and evidence you are the spouse of an International Entrepreneur Parolee, such as a copy of the principal’s Form I-94 and a copy of your marriage certificate.
- Note: If a Form I-765 is submitted to USCIS before the spouse has been paroled into the United States, the application may be denied and fees may not be returned.
- File your completed form(s) at the USCIS Dallas Lockbox facility.
For U.S. Postal Service (USPS): For FedEx, UPS, and DHL deliveries:
Form I-9 Guidance
A foreign entrepreneur granted parole may be an employer or an employee. Those who are employees will be required to complete Form I-9, Employment Eligibility Verification.
The following document establishes identity and employment authorization for employment with a specific employer for Form I-9 purposes under List A for an employee who is an entrepreneur granted parole:
- Foreign passport; and
- Form I-94, Arrival/Departure Record, indicating entrepreneur parole (PE-1) as the class of admission that has the following:
- The same name as the passport; and
- An endorsement of the individual’s parole as long as that period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form.
- For information on Form I-9 requirements, see I-9 Central.
The spouse of a foreign entrepreneur granted parole may also be eligible for parole and apply for work authorization once present in the United States. The spouse is only authorized to work if DHS has issued them a Form I-766, Employment Authorization Document. Children of entrepreneurs granted parole are not eligible for employment on the basis of this parole.
USCIS Issues Policy Guidance on Deference to Previous Decisions
USCIS is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.
With this update, USCIS is reverting in substance to prior long-standing guidance issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. In 2017, USCIS rescinded the 2004 guidance.
This update is in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The executive order directs the secretary of homeland security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits. Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits.
For more information, see the policy guidance (PDF, 298.85 KB).
National Interest Exceptions for Certain Travelers from China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland
Last Updated: April 26, 2021
On April 26, 2021, the Secretary of State made a national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamations (PPs) 9984, 9992, and 10143 related to the spread of COVID-19. As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations, due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are seeking to provide vital support for critical infrastructure; journalists; students and certain academics covered by exchange visitor programs, may now qualify for a National Interest Exception (NIE). Students and academics subject to these proclamations due to their presence in China, Iran, Brazil, or South Africa, may qualify for an NIE only if their academic program begins August 1, 2021 or later. Qualified travelers who are applying for or have valid visas or ESTA authorization may travel to the United States following the procedures below, even as PPs 9984, 9992, and 10143 remain in effect.
Students with valid F-1 and M-1 visas intending to begin or continue an academic program commencing August 1, 2021 or later do not need to contact an embassy or consulate to seek an individual NIE to travel. They may enter the United States no earlier than 30 days before the start of their academic studies. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel.
Travelers in categories described above who have a valid visa in the appropriate class or who have a valid ESTA authorization for travel under the Visa Waiver Program and seek to travel for purposes consistent with ESTA authorization, should contact the nearest U.S. embassy or consulate before traveling, if they believe they may qualify for a National Interest Exception. If a National Interest Exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.
The Department of State also continues to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. These travelers and any others who believe their travel to be in the United States’ national interest should also review the website of the nearest U.S. embassy or consulate for instruction on how to contact them.
As with all NIEs for qualified travelers seeking to enter the United States under a Presidential Proclamation, if circumstances warrant, the Secretary of State may revise the national interest determination.
Biden Administration’s Current U.S. Travel Restrictions and Revised National Interest Exception Criteria
Thursday, April 8, 2021
The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.
Travel Restrictions Based on Country of Physical Presence
Suspends and limits entry into the United States by individuals who were physically present in China during the 14-day period prior to their entry/attempted entry
Suspends and limits entry into the United States by individuals who were physically present in Iran during the 14-day period prior to their entry/attempted entry
Suspended and limited entry into the United States by individuals who were physically present in the Schengen Area during the 14-day period prior to their entry/attempted entry
Suspended and limited entry into the United States by individuals who were physically present in the United Kingdom and Ireland during the 14-day period prior to their entry/attempted entry
Suspended and limited entry into the United States by individuals who were physically present in Brazil during the 14-day period prior to their entry/attempted entry
Suspends and limits entry into the United States by individuals who were physically present in South Africa, the Schengen Area, the United Kingdom, Ireland, and Brazil during the 14-day period prior to their entry/attempted entry
Following the issuance of Proclamation 10143, the State Department rescinded previous NIE guidance and simultaneously issued new guidance on March 2, 2021, as related to the Schengen Area, the United Kingdom, and Ireland. According to the State Department, the original guidance had provided exceptions for “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.” However, the updated guidance includes exceptions under Proclamation 10143 for individuals who “provide vital support for critical infrastructure.” [Emphasis added.] Additionally, NIEs remain available for individuals entering the United States “for purposes related to humanitarian travel, public health response, and national security.”
Travel Restrictions Based on Visa Type
On April 22, 2020, the Trump administration issued Proclamation 10014 suspending the entry of individuals to the United States on immigrant visas. This proclamation did not affect applications for adjustment of status or nonimmigrants, such as business visitors or temporary workers. On June 22, 2020, the Trump administration issued Proclamation 10052, which extended the sunset date of Proclamation 10014 to December 31, 2020. Proclamation 10052 also suspended the entry of certain individuals to the United States on select nonimmigrant visas, including H-1B, H-2B, J-1, and L-1 visa holders, as well as their dependents through the end of the year. On December 31, 2020, the Trump administration issued Proclamation 10131, extending Proclamations 10014 and 10052 until March 31, 2021. On February 24, 2021, the Biden administration revoked Proclamation 10014 and section 1 of Proclamation 10052. The Biden administration allowed the remaining sections of Proclamation 10052 to expire on March 31, 2021, and has not expressed any plans to renew or replace it at this time. As a result, Proclamations 10014 and 10052 are no longer in effect.
Backlogs Remain for Most Consular Operations
While the expiration of Proclamation 10052 is certainly welcome news, foreign nationals should not expect immediate processing of their visa applications. The backlog of cases pending at the U.S. consulates around the world remains an ongoing issue due to COVID-19. The U.S. consular posts have confirmed they will begin a phased resumption of routine visa services based on local conditions but no specific timeline is available. Additionally, applicants who are no longer subject to Proclamation 10052 may still face obstacles entering the United States due to country-specific travel restrictions. Foreign nationals who are subject to country-specific travel bans will continue to require an NIE authorizing each entry to the United States.