2021 US Immigration Developments Tracker | Practical Law

2021 US Immigration Developments Tracker | Practical Law

A Practice Note tracking key US immigration developments, including laws, regulations, and other administrative agency guidance and interpretations issued in 2021. The laws and developments tracked here relate to immigration processes and procedures, lawful immigration status, and work authorization.

2021 US Immigration Developments Tracker

Practical Law Practice Note w-031-5971 (Approx. 21 pages)

2021 US Immigration Developments Tracker

by Practical Law Labor & Employment
Law stated as of 31 Dec 2021 • USA (National/Federal)
A Practice Note tracking key US immigration developments, including laws, regulations, and other administrative agency guidance and interpretations issued in 2021. The laws and developments tracked here relate to immigration processes and procedures, lawful immigration status, and work authorization.

Executive Actions

  • November 19, 2021: President Biden published Proclamation 10309 suspending entry into the US immigrant and nonimmigrant members of the Ortega Government of Nicaragua (see also Presidential Briefing dated November 16, 2021).
  • August 20, 2021: President Biden published Presidential Determination No. 2021–11 addressing unexpected urgent Afghan refugee and migration needs.
  • August 16, 2021: President Biden published a Memorandum stating that, under the Migration and Refugee Assistance Act of 1962 (MRAA), the US would provide up to $500 million from the US Emergency Refugee and Migration Assistance Fund for refugee and migration needs of refugees, victims of conflict, and those at risk as a result of the situation in Afghanistan.
  • August 10, 2021: President Biden published in the Federal Register a Memorandum directing the deferral for 18 months the removal of certain Hong Kong residents present in the US.
  • August 5, 2021: President Biden announced, in a memorandum for the Secretary of Homeland Security, the deferral of removal of certain Hong Kong residents present in the US.

Federal Administrative Agency Regulations and Guidance

Department of Homeland Security (DHS)

  • December 20, 2021: DHS announced it would (jointly with the Department of Labor), for the first time, supplement the H-2B visa cap in the first half of the fiscal year. The supplement is 20,000 additional visas.
  • December 15, 2021: DHS announced it would adopt a definition of statelessness for immigration purposes and lessen barriers to immigration relief and benefits for stateless persons.
  • October 12, 2021: Secretary of Homeland Security Mayorkas issued a memorandum titled "Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual" directing US Immigration and Customs Enforcement, US Customs and Border Protection, and US Citizenship and Immigration Services to support DHS strategy to improve enforcement of employment and labor standards.
  • September 30, 2021: DHS published a Final Rule adding Croatia to the list of countries designated for participation in the visa waiver program. This final rule is effective on December 1, 2021 (86 Fed. Reg. 54029 (September 30, 2021)).
  • September 28, 2021: DHS announced that Croatia has been added as a participant in the Visa Waiver Program (VWP). For more on the VWP, see Practice Note, Business Visitors to the US: A Quick Guide.
  • September 28, 2021: DHS published a notice of proposed rulemaking on ways to preserve and fortify the DHS's Deferred Action for Childhood Arrivals (DACA) policy. The proposed rule would define key terms, establish threshold criteria, and establish filing requirements. Written comments and related material must be submitted on or before November 29, 2021. (86 Fed. Reg. 53736 (Sept. 28, 2021).)
  • September 27, 2021: DHS announced it was publishing a notice of proposed rulemaking on the Deferred Action for Childhood Arrivals (DACA) program. The proposed rule is issued in response to a July 16, 2021 district court decision finding DACA unlawful and remanding the program to DHS for reconsideration (see Key Federal Court Decisions).
  • August 18, 2021: DHS and Department of Justice (DOJ) announced proposed amendments to current regulations to allow USCIS asylum officers to hear and decide applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection for individuals who receive a positive credible fear determination.
  • August 4, 2021: DHS published a Notice announcing extensions of the initial registration periods from 180 days to 18 months for initial (new) applicants under the Temporary Protected Status (TPS) designations for Venezuela, Syria, and Burma.
  • August 3, 2021: DHS published a Notice announcing Haitian citizens who are lawful F–1 nonimmigrant students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F–1 nonimmigrant student status. This F-1 notice is effective August 3, 2021 through February 3, 2023.
  • August 3, 2021: DHS announced designation of Haiti for TPS for 18 months, effective August 3, 2021, through February 3, 2023.
  • July 30, 2021: DHS announced it had posted for public inspection a Federal Register Notice that provides information about how to register for TPS for Eligible Haitians who have continuously resided in the US since July 29, 2021.
  • July 22, 2021: DHS published a Notice announcing Somali citizens who are lawful F–1 nonimmigrant students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F–1 nonimmigrant student status. This Notice is effective September 18, 2021 through March 17, 2023.
  • July 22, 2021: DHS published a Notice of Temporary Protected Status Extension and Redesignation extending the designation of Somalia for TPS for 18 months, from September 18, 2021, through March 17, 2023.
  • July 19, 2021: DHS announced an 18-month extension and re-designation of Somalia for TPS from September 18, 2021, through March 17, 2023.
  • July 6, 2021: DHS announced the 18-month extension and redesignation of Yemen for TPS from September 4, 2021 through March 3, 2023..
  • July 1, 2021: DHS announced the Office of Citizenship and Immigration Services Ombudsman (CIS Ombudsman) published its 2021 annual report to Congress. All reports may be found at the CIS Ombudsman website.

DHS: Immigration and Customs Enforcement (ICE)

DHS: Transportation Security Administration (TSA)

DHS: US Citizenship and Immigration Services (USCIS)

  • December 22, 2021: USCIS published a final rule withdrawing its January 8, 2021 final rule, " Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions," because it has been vacated by a federal court (86 Fed. Reg. 72516 (Dec. 22, 2021)). For more information on this rule, see Legal Update, USCIS Finalizes Cap-Selection Method to Prioritize by Wage Level and Key Federal Court Decisions.
  • December 10, 2021: USCIS announced that it is rescinding a November 2020 policy memorandum requiring interviews for all asylum and refugee petitioners filing Form I-730 for dependent applicants. The agency is returning to the prior interview policy, which used a case-by-case assessment to determine whether to schedule a petitioner for an interview.
  • December 9, 2021: USCIS announced that it is temporarily waiving, until September 30, 2022, the requirement that a civil surgeon have signed a required medical exam report (Form I-693) within 60 days before filing the underlying benefit application (such as Form I-485, Application to Register Permanent Residence or Adjust Status).
  • December 8, 2021: USCIS announced that it will automatically extend parole and employment authorization, if applicable, for parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.
  • November 29, 2021: USCIS announced that, as of November 29, 2021, all applicants eligible to file for temporary protected status under one of the current designations may file online Form I-821, Application for Temporary Protected Status and Form I-765, Application for Employment Authorization.
  • November 23, 2021: USCIS announced it would incorporate general adjudications guidance into the USCIS Policy Manual.
  • November 22, 2021: USCIS published an Alert stating that it may provide a refund to individuals who paid a fee to file an initial bona-fide-determination-related Form I-765 under the 8 CFR 274a.12(c)(14) eligibility category between June 14, 2021 and September 29, 2021.
  • November 12, 2021: USCIS published Policy Alert PA-2021-25 to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses.
  • November 12, 2021: USCIS published Policy Alert PA-2021-24 providing clarifications regarding certain naturalization applications filed by current or former members of the US armed forces under Sections 328 and 329 of the INA.
  • November 10, 2021: DHS published a Notice designating foreign countries whose nationals may participate in the H–2A and H–2B nonimmigrant worker programs. The designations are effective from November 10, 2021 through November 10, 2022.
  • November 8, 2021: USCIS announced that DHS will exempt filing fees and streamline application processing for Afghan nationals paroled into the US for humanitarian reasons on or after July 30, 2021.
  • November 5, 2021: USCIS announced that its California Service Center is now accepting credit card payments using Form G-1450, Authorization for Credit Card Transactions, for petitioners filing Form I-129, Petition for a Nonimmigrant Worker, for O and P nonimmigrants.
  • October 28, 2021: USCIS announced an update on processing H-1B petitions for market research analysts, based on its settlement with plaintiffs in MadKudu, Inc. v. US Citizenship Services. See Legal Update, USCIS Settlement Agreement Outlines Standards in H-1B Petitions for Market Research Analysts.
  • October 26, 2021: USCIS published a Notice seeking input regarding document examination practices associated with the Form I–9, Employment Eligibility Verification. Written comments should be submitted on or before December 27, 2021. For more information on Form I–9, see Standard Document, Form I-9 Agent Instructions for Remote Employees.
  • October 22, 2021: USCIS announced that the Vermont Service Center would begin accepting credit card payments for petitioners filing Form I-129, Petition for a Nonimmigrant Worker.
  • October 21, 2021: USCIS announced it had published a Notice regarding implementation of employment authorization for eligible individuals covered by deferred enforced departure (DED) for Hong Kong.
  • October 20, 2021: USCIS announced updated Policy Guidance on T Visa Adjudications.
  • October 12, 2021: USCIS announced it had reached the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2022.
  • September 23, 2021: USCIS provided guidance on verification for Afghan Conditional Permanent Resident status for special immigrants (SI) and non-SI Afghan parolees.
  • September 16, 2021: USCIS announced it had added the Texas Service Center to the agency's credit card payment pilot program, which began at the Nebraska Service Center. As a result of the expansion, petitioners filing Form I-140, Immigrant Petition for Alien Workers, with or without Form I-907, Request for Premium Processing, or those filing Form I-907 to upgrade a pending Form I-140 to premium processing, may now use Form G-1450, Authorization for Credit Card Transactions to remit payment for those forms.
  • September 14, 2021: USCIS announced that, effective October 1, 2021, adjustment of status applicants who must submit Form I-693, Report of Medical Examination and Vaccination Record, must be fully vaccinated against COVID-19 before Form I-693 may be completed (as with all vaccinations, waivers may be available). The change is based on a CDC directive.
  • September 13, 2021: USCIS published a final rule with a technical amendment to the international entrepreneur program, describing the increased investment and revenue amounts effective for applications received in fiscal year 2022, which begins on October 1, 2021. The rule requires that investment and revenue amounts be updated every three years using the Consumer Price Index (8 C.F.R. § 212.19(l)). (86 Fed. Reg. 50839 (Sept. 13, 2021).)
  • September 3, 2021: USCIS announced that, effective September 3, 2021, it is extending the evidence of status from 18 to 24 months conferred on conditional permanent residents who file an application to remove the conditions on their status, including either:
    • Form I-751 (used by conditional permanent residents who are married to a US citizen); or
    • Form I-829 (used by immigrant investors).
  • September 3, 2021: USCIS published notice of a hearing and a link to a proposed settlement agreement in MadKudu Inc. v. U.S. Citizenship and Immigration Servs., No. 5:20-CV-02653 (N.D. Cal. Apr. 16, 2020). Plaintiffs in MadKudu are challenging USCIS's arbitrary decision making when considering H-1B petitions for Market Research Analysts. The plaintiffs were granted class certification (MadKudu, Inc. v. U.S. Citizenship and Immigration Servs., (N.D. Cal. Nov. 17, 2020)).
  • September 1, 2021: USCIS announced it had created a webpage to track changes to lockbox filing location updates.
  • August 23, 2021: USCIS published advance notice of a proposed rulemaking and notice of virtual public listening sessions on the public charge ground of inadmissibility. Written comments and related material must be received by October 22, 2021. (86 Fed. Reg. 47025 (Aug. 23, 2021).)
  • August 20, 2021: USCIS announced it is seeking public input on suggested changes to the public charge ground of inadmissibility.
  • August 19, 2021: USCIS announced it had reached the cap for remaining H-2B visas for returning workers for FY 2021.
  • August 19, 2021: USCIS announced it had reached a settlement agreement in the case of Vangala et al. v. USCIS et al., No. 4:20-cv-08143 (N.D. Cal.). The agreement allows certain individuals to receive updated receipt dates for resubmitted immigration benefit applications or petitions originally rejected under the former "No Blank Space" rejection policy under which USCIS rejected filings with any blank fields or spaces.
  • August 12, 2021: USCIS announced that it is temporarily extending the validity period for Form I-693, Report of Medical Examination and Vaccination Record to four years due to COVID-19-related delays in processing.
  • August 9, 2021: USCIS announced a partnership with the Social Security Administration to enable applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, to apply for a Social Security number or replacement card concurrently. This change to Form I-485 is effective immediately.
  • August 5, 2021: USCIS announced updated policy guidance to allow a non-genetic, non-gestational legal parent of a child born outside the US through assisted reproductive technology (ART) to transmit US citizenship to that child.
  • July 29, 2021: USCIS announced it had approved the application from Josef Silny Associates, Inc. as an authorized credentialing organization for individuals seeking to enter the US for the primary purpose of working as a nurse.
  • July 26, 2021: USCIS announced technical updates to Chapter 7 of its Policy Manual:
    • adding references to the EB-5 visa program and Form I-526, Immigrant Petition by Alien Investor; and
    • clarifying the Child Status Protection Act eligibility of derivative applicants of the VAWA-based Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  • July 23, 2021: USCIS announced that employers may file H-2B petitions for returning workers for FY 2021. USCIS will accept petitions for returning workers until September 15, 2021 or until the remainder of the cap is reached.
  • July 22, 2021: USCIS announced adjusted addresses (refined attention lines and ZIP codes) for certain applicants filing Form I-131, Application for Travel Document.
  • July 21, 2021: USCIS announced that eligible nationals of Burma, Somalia, Syria, Venezuela or Yemen can now file Form I-821, Application for TPS, online if they are applying for TPS for the first time.
  • July 21, 2021: USCIS announced that DHS published a Notice extending and redesignating Somalia for TPS for 18 months, from September 18, 2021, through March 17, 2023.
  • July 20, 2021: USCIS announced new policy guidance that individuals who have applied for a change of status to F-1 student no longer need to apply to change or extend their nonimmigrant status while their initial F-1 change of status application is pending.
  • July 20, 2021: USCIS announced the expansion of a previously announced pilot program at the Nebraska Service Center for accepting credit card payments using Form G-1450, Authorization for Credit Card Transactions, for certain applicants applying for premium processing.
  • July 19, 2021: USCIS Acting Director Tracy Renaud released a Statement that under Texas v. U.S., DHS is enjoined from granting initial DACA requests ( (S.D. Tex. July 16, 2021)).
  • July 7, 2021: USCIS announced that it, with its partners ICE and The Department of Justice's Immigrant and Employee Rights (IER) section, updated guidance on accepting receipts during the Form I-9 process, providing for greater flexibility to accept new documents in place of the replacement document . The most up-to-date guidance can be found on USCIS's I-9 Central website. For more information on the Form I-9 process, see Immigration Compliance Toolkit.
  • July 2, 2021: USCIS announced that DHS has released its interagency strategy for promoting naturalization. For more on naturalization, see Practice Note, Naturalization to US Citizenship: A Quick Guide.
  • July 1, 2021: USCIS provided guidance on how it will handle EB-5 Regional Center (RC) cases because statutory authority for the program lapsed on June 30, 2021 (see Legal Update, Court Vacates EB-5 Regulation Increasing Investment Requirements: Northern District of California). Beginning on July 1, 2021 and while RC authority is lapsed, USCIS will:
    • reject any Form I-924, Application for RC Designation Under the Immigrant Investor Program, or Form I-526, Immigrant Petition by Alien Investor, if the Form I-526 is based on an RC;
    • hold in abeyance any pending case related to an RC, although applicants and petitions should respond to any requests for information or evidence;
    • reject any Form I-485, Application to Adjust Status, and related forms relying on an approved Form I-526 that is based on an RC; and
    • continue to accept any Form I-589, Petition by Entrepreneur to Remove Conditions on Permanent Residence Status.
    For more on the EB-5 classification, see EB-5 Immigrant Investor Visa Fundamental Requirements Chart.

Department of Justice (DOJ)

Department of Labor (DOL)

DOL: Employment and Training Administration (ETA)

DOL: Office of Foreign Labor Certification (OFLC)

DOL: Wage and Hour Division (WHD)

  • December 7, 2021: The WHD published a Field Assistance Bulletin (FAB) on employer overtime obligations in the H-2B nonimmigrant visa program.

Department of State (DOS)

  • December 29, 2021: DOS published a proposed rule to amend the consular schedule of fees to increase the fees for nonimmigrant visa application processing, the Border Crossing Card (BCC) for Mexican citizens age 15 and over, and the J-1 two-year residency requirement waiver. Comments on the proposed increases are due by February 28, 2022. (86 Fed. Reg. 74018 (Dec. 29, 2021).)
  • December 23, 2021: DOS announced several visa processing policies, including:
    • a program to permit consular officers to, through December 31, 2022 waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a USCIS petition approval;
    • extend, through December 31, 2022, the interview waiver for certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants); and
    • extend, through December 31, 2022, the interview waiver for certain H-2A and H-2B applicants (temporary agricultural and non-agricultural workers).
  • December 22, 2021: DOS published a final rule allowing certain qualified applicants filing to renew their US passports to submit their applications online (as well as by mail). The rule is effective December 23, 2021. (86 Fed. Reg. 72520 (Dec. 22, 2021).)
  • December 13, 2021: DOS published a temporary final rule and final rule providing consular officers with flexibility to waive certain in-person immigrant visa applicant interview requirements for a temporary period of two years (from December 13, 2021 through December 13, 2023), with the final rule requiring in-person interviews for immigrant visa applicants taking effect on December 13, 2023 (86 Fed. Reg. 70735 (Dec. 13, 2021)).
  • November 17, 2021: DOS published an interim final rule stating that it will reopen until January 18, 2022 the public comment period on its October 11, 2019 interim final rule regarding visa ineligibility on public charge grounds.
  • November 16, 2021: DOS republished an interim final rule on the public charge ground of inadmissibility to reopen the comment period. DOS will accept comments until January 18, 2022. For more information on the public charge inadmissibility ground and the current state of the law, see Practice Note, Assessing A Foreign National's Financial Solvency: The Public Charge Ground of Inadmissibility.
  • November 9, 2021: DOS announced that "A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic" became effective on November 8, 2021. More information about the vaccine requirement for air travel to the US for noncitizen and nonimmigrant travelers is available on the CDC website.
  • November 5, 2021: DOS published a final rule amending its regulations to remove references to the North American Free Trade Agreement (NAFTA) and replace them with references to the United States-Mexico-Canada Agreement (USMCA) (86 Fed. Reg. 61064 (Nov. 5, 2021)).
  • October 28, 2021: DOS published a Final Rule adjusting the Schedule of Fees for Consular Services by increasing the passport book security surcharge from $60 to $80.
  • October 7, 2021: DOS published a Final Rule replacing Form IAP–66, Certificate of Eligibility for Exchange Visitor Status, with the updated name of Form DS–2019, Certificate of Eligibility for Exchange Visitor Status. The Final Rule becomes effective on November 8, 2021.
  • October 6, 2021: DOS published a summary of various court orders regarding the reservation of DV-2020 and DV-2021 diversity visas.
  • October 4, 2021: DOS released the instructions and frequently asked questions for the Diversity Immigrant Visa (DV-2023) program. Under the DV-2023 program, foreign nationals may submit an Electronic Diversity Visa Entry Form (E–DV Entry Form or DS–5501) electronically at https://dvprogram.state.gov/ between 12:00 noon EDT on Wednesday, October 6, 2021, and 12:00 noon EST on Tuesday, November 9, 2021, for a chance to obtain a green card in fiscal year 2023, which runs from October 1, 2022, through September 30, 2023.
  • October 1, 2021: DOS announced that, effective October 1, 2021, applicants for some nonimmigrant visas, K fiancé(e) visas, and immigrant visas are required to show that they have receive a COVID-19 vaccination. This requirement is based upon a CDC directive. It matches USCIS's September 14, 2021 announcement requiring COVID-19 vaccination by individuals in the US filing Form I-485, Application to Register Permanent Resident or Adjust Status (see DHS: US Citizenship and Immigration Services (USCIS)).
  • September 14, 2021: DOS published a notice amending the Exchange Visitor Program regulations to include email as an acceptable method of providing written notice to a sponsor that is the subject of a sanction action (86 Fed. Reg. 50993 (Sept. 14, 2021)).
  • September 14, 2021: DOS announced it has authorized consular offices around the world to create more opportunities for F, M, and academic J visa applicants to apply for their visas.
  • September 13, 2021: DOS announced an update on its immigrant visa prioritization plans to process immigrant visa applications in light of the long backlogs.
  • September 12, 2021: DOS announced an update on Diversity Visa-2021 (DV-2021) processing in light of a district court decision holding that the DOS visa prioritization from November 2020 cannot be applied to DV-2021 applicants. The DOS committed to processing as many DV-2021 applications as it could through the end of the fiscal year, September 30, 2021.
  • September 2, 2021: DOS published Notice of Extension of Passport Travel Restriction extending until August 31, 2022 the restriction on US passports for travel to, in, or through the Democratic People's Republic of Korea (DPRK), unless specially validated for such travel (86 Fed. Reg. 49408 (Sept. 2, 2021)).
  • August 30, 2021: DOS published an article sharing the current status of worldwide visa operations in light of the backlog caused by the COVID-19 pandemic.

Key Federal Court Decisions

Immigration Developments Between January 1 and June 30, 2021

Between January 1 and June 30, 2021 Practical Law published Legal Updates on the following key US immigration developments: