ABIL Immigration Insider • March 6, 2022

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In this issue:

1. DHS Designates Ukraine for Temporary Protected Status; Immigration Help in ‘Special Situations’ Available on Case-by-Case Basis – The Department of Homeland Security announced the designation of Ukraine for Temporary Protected Status for 18 months. Eligible individuals must have continuously resided in the United States since March 1, 2022. Also, USCIS issued an alert about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine.

2. State Dept. Announces Processing Posts for Visa Applicants From Ukraine – The U.S. Mission to Ukraine is not currently offering visa services. Ukrainian immigrant visas other than adoption cases will be processed at Consulate General Frankfurt. The announcement includes additional details.

3. State Dept. Releases Info and Tips for U.S. Citizens in Ukraine – The notice includes an online form to enable DOS to communicate with U.S. citizens, telephone numbers for immediate assistance, and advice and tips on how to prepare when crossing a border during a crisis, and on entering neighboring countries from Ukraine.

4. DHS Designates Sudan, Extends/Redesignates South Sudan for Temporary Protected Status – The Department of Homeland Security designated Sudan and extended and redesignated South Sudan for Temporary Protected Status for 18 months.

5. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From South Sudan – The Department of Homeland Security is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Republic of South Sudan, regardless of country of birth (or individuals having no nationality who last habitually resided in South Sudan), and who are experiencing severe economic hardship as a direct result of the humanitarian crisis in South Sudan. The notice is effective March 3, 2022, through November 3, 2023.

6. FY 2022 H-1B Cap Reached – USCIS received a sufficient number of petitions needed to reach the 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for FY 2022.

7. H-2B Cap Reached for Second Half of FY 2022 – February 25, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2022, and before October 1, 2022.

8. Credit Card Payment Pilot Program Expanded to All Service Centers – Credit card payments are now being accepted at USCIS service centers using Form G-1450, Authorization for Credit Card Transactions, for all forms except Form I-129, Petition for a Nonimmigrant Worker, for H-1B and H-2A petitions.

9. USCIS Clarifies I-9 Guidance for Native American Tribal Documents, Others – USCIS recently clarified Form I 9 guidance related to Native American Tribal documents, and T and U nonimmigrants, in its M 274, Handbook for Employers.

10. Biden Administration Considers TPS, Other Measures for Ukrainians; Advocacy Organizations Weigh In; Consular Services Suspended in Kyiv – The Biden administration is considering implementing protections for Ukrainians in the United States, as Russia invades Ukraine in a rapidly developing situation expected to result in many refugees and displaced persons. Consular services are suspended in Kyiv; help is available at the border.

11. USCIS No Longer Accepts Single Combined Payments on Certain Forms Filed With H-1B or H-1B1 Petitions – For all H-1B and H-1B1 petitions received on or after April 1, 2022, USCIS will no longer accept a single, combined fee payment for certain forms.

12. USCIS Releases Statistics on H-1B Cap Registrations, Cracks Down on Multiples – Registrations were submitted by more than 37,000 prospective petitioners. Roughly 48 percent of all registrations requested consideration under the advanced degree exemption.

13. USCIS Releases Notice in Response to Class Action for Certain Cuban Nationals Denied Adjustment – Certain Cuban nationals who were denied Cuban adjustment for lack of a parole document are eligible to file I-290B (Notice of Appeal or Motion) for up to one year, or a new I-485 (Application to Register Permanent Residence or Adjust Status).

14. USCIS Urges Eligible Applicants to Switch Employment-Based Categories – USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status applications to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories.

15. Visa Bulletin for March Includes Updates on Employment-Based Expirations and Retrogressions – The Department of State’s Visa Bulletin for March 2022 includes several updates on expiring or retrogressing employment-based visa categories.

16. DHS To Propose ‘Fair and Humane’ Public Charge Rule – According to DHS, the proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States.

17. Two California Executives Charged With Fraud in Obtaining Dozens of H-1B Specialty Occupation Visas – The indictment alleges that the two executives submitted approximately 85 fraudulent H-1B visa applications and laundered $1 million in fraud proceeds.

18. United States Once Again ‘Welcomes’ Immigrants: USCIS Announces New Mission Statement – The new mission statement, with its emphasis on welcoming and respect, reflects USCIS’s restoring of the agency’s focus on services.

19. USCIS Updates Guidance, Changes Maximum Validity Period for EADs for Certain Applicants – USCIS said that increasing the maximum validity period for several categories “will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.”

20. USCIS Clarifies Guidance on Temporary Need Requirement for H-2B Workers in Guam and Northern Marianas – USCIS clarified its guidance on how petitioners may demonstrate that they qualify for an exemption from the temporary need requirement for a nonimmigrant visa petition for a temporary nonagricultural H-2B worker on Guam and in the Commonwealth of the Northern Mariana Islands that falls under the Fiscal Year 2021 National Defense Authorization Act.

21. New Lockbox Facility Opens in Illinois – USCIS is beginning to transition incoming work for certain applicants to a new lockbox facility in Elgin, Illinois.

22. DHS, VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Families – The Department of Homeland Security, in partnership with the Departments of Veterans Affairs and Defense, launched new online resources to support U.S. noncitizen service members, veterans, and their families.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – March 2022

1. DHS Designates Ukraine for Temporary Protected Status; Immigration Help in ‘Special Situations’ Available on Case-by-Case Basis

On March 3, 2022, the Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. Also, U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. Highlights are below.

Temporary Protected Status for Ukraine

Individuals eligible for TPS under the Ukraine designation must have continuously resided in the United States since March 1, 2022. According to reports, up to an estimated 75,000 Ukrainians in the United States could be eligible for TPS.

Ukraine’s 18-month designation will take effect on the publication date of a forthcoming Federal Register notice, which will provide instructions for applying for TPS and a work permit. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Case-by-Case Help in Special Situations

U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. USCIS provided a list of measures that may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. USCIS said, “If you fail to apply for the extension or change before expiration of your authorized period of admission, we may excuse that if the delay was due to extraordinary circumstances beyond your control”;
  • Reparole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of petitions or applications, including employment authorization applications, when appropriate;
  • Consideration of fee waiver requests due to an inability to pay;
  • Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Flexibility if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Document, or Form I-94, Arrival/Departure Record; and
  • Rescheduling a biometric services appointment.

At least an estimated 1.3 million Ukrainians have fled their country since Russia invaded Ukraine in late February, with more following. More than half are in Poland, with others in Hungary, Moldova, Romania, and Slovakia. The rapidly escalating situation on the ground in Ukraine remains fluid, chaotic, and extremely dangerous.

It is unclear whether the United States will be taking in new Ukrainian refugees or offering asylum in addition to providing TPS for those already in the country.

Details:

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2. State Dept. Announces Processing Posts for Visa Applicants From Ukraine

The Department of State (DOS) announced on March 1, 2022, that the U.S. Mission to Ukraine is not currently offering visa services. Ukrainian immigrant visas (IVs) other than adoption cases will be processed at Consulate General Frankfurt. (The U.S. Embassy in Warsaw will process Ukrainian adoption cases as well as A and G diplomatic and official visas.) The announcement includes the following details:

  • Contact [email protected] with questions about Ukrainian immigrant and fianc(é)e visa cases.
  • Nonimmigrant visa (NIV) applications may be processed wherever a Ukrainian applicant is physically located and can schedule an appointment. Interested applicants should follow instructions on the relevant U.S. Embassy website to apply for a nonimmigrant visa. A list of U.S. Embassy websites is at https://www.usembassy.gov.
  • Ukrainian applicants do not require a Schengen visa to enter Germany or Poland. However, immigrant visa (IV) and diversity visa (DV) applicants who already have been scheduled for appointments in Frankfurt or Warsaw may request that their cases be transferred to another post. To do so, the applicant should contact the alternate post to request a case transfer, and the transfer is contingent upon the alternate post’s acceptance of the case.
  • IV and DV applicants who have not yet been scheduled will be automatically reassigned to Frankfurt and will be notified once their appointment is on the calendar. Unscheduled Ukrainian DV applicants who need to interview outside of Germany can send requests to [email protected].

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3. State Dept. Releases Info and Tips for U.S. Citizens in Ukraine

The Department of State (DOS) released information on March 4, 2022, for U.S. citizens in Ukraine, including an online form to enable DOS to communicate with U.S. citizens, telephone numbers for immediate assistance, and advice and tips:

  • The online form is at https://cacms.state.gov/s/crisis-intake
  • S. citizens seeking to leave Ukraine can call 1-833-741-2777 (in the United States) or 1-606-260-4379 (from overseas) for immediate assistance.
  • DOS encourages U.S. citizens to enroll in its Smart Traveler Enrollment Program (STEP). STEP enrollment provides the latest security updates and makes it easier for the U.S. Embassy to contact citizens in the event of an emergency.

The notice includes additional information, including specific tips on how to prepare when crossing a border during a crisis, and on entering neighboring countries from Ukraine.

Details:

  • “Information for U.S. Citizens in Ukraine,” which includes border-crossing advice,

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4. DHS Designates Sudan, Extends/Redesignates South Sudan for Temporary Protected Status

Due to “political instability and unrest” and “armed conflict in South Sudan,” which has displaced millions, the Department of Homeland Security (DHS) designated Sudan and extended and redesignated South Sudan for Temporary Protected Status (TPS) for 18 months.

Individuals newly eligible for TPS under the Sudan designation must have continuously resided in the United States since March 1, 2022. This includes those who benefited from the previous TPS designation for Sudan, which required continuous residence in the United States on or before January 9, 2013.

The 18-month extension and redesignation of South Sudan for TPS will be effective May 3, 2022, through November 3, 2023. To be eligible, individuals must have continuously resided in the United States since March 1, 2022, and meet all other TPS eligibility criteria. The extension of South Sudan allows currently eligible TPS South Sudan beneficiaries to re-register and retain TPS through November 3, 2023, as long as they otherwise continue to meet the TPS eligibility requirements. DHS noted that the redesignation of South Sudan allows additional individuals who have been continuously residing in the United States since March 1, 2022, to obtain TPS, if otherwise eligible.

TPS applicants must meet all eligibility requirements and undergo security and background checks. The Federal Register notices include instructions for applying for TPS and an Employment Authorization Document.

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5. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From South Sudan

The Department of Homeland Security (DHS) announced that it is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Republic of South Sudan, regardless of country of birth (or individuals having no nationality who last habitually resided in South Sudan), and who are experiencing severe economic hardship as a direct result of the humanitarian crisis in South Sudan. The notice is effective March 3, 2022, through November 3, 2023.

The Federal Register notice from U.S. Immigration and Customs Enforcement (ICE) announcing the suspension explained that an eligible F-1 nonimmigrant student 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 status. The notice states that DHS will deem such a student who receives employment authorization to be engaged in a “full course of study” for the duration of the employment authorization if the student satisfies the minimum course load requirement described in the notice.

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6. FY 2022 H-1B Cap Reached

On February 28, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2022, which ends September 30, 2022.

USCIS said it has completed sending non-selection notices to registrants’ online account. The agency will continue to accept and process petitions that are otherwise exempt from the cap, including petitions “filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number.” USCIS said it will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

USCIS began its registration system for cap-subject H-1Bs for fiscal year 2023 on March 1.

Details:

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7. H-2B Cap Reached for Second Half of FY 2022

On March 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2022. February 25, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2022, and before October 1, 2022. USCIS said it will reject new cap-subject H-2B petitions received after February 25, 2022, that request an employment start date on or after April 1, 2022, and before October 1, 2022.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including petitions for:

  • Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change employers;
  • Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam (until December 31, 2029).

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8. Credit Card Payment Pilot Program Expanded to All Service Centers

Credit card payments are now being accepted at U.S. Citizenship and Immigration Services (USCIS) service centers using Form G-1450, Authorization for Credit Card Transactions, for all forms except Form I-129, Petition for a Nonimmigrant Worker, for H-1B and H-2A petitions.

USCIS said it will evaluate the results of the pilot program when it concludes, which previously was implemented at the Nebraska, Texas, Vermont, and California service centers. USCIS did not indicate when the pilot program would end.

Details:

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9. USCIS Clarifies I-9 Guidance for Native American Tribal Documents, Others

U.S. Citizenship and Immigration Services (USCIS) recently clarified Form I‑9 guidance related to Native American Tribal documents in M‑274, Handbook for Employers.

The handbook explains that a Native American Tribal document is an official Tribal or community membership document issued by a Native American Indian Tribe, or an Alaska Eskimo or Aleut community, that is recognized by the U.S. federal government. A Tribal or community membership document that is issued by a Tribe or community that is not recognized by the U.S. federal government is not acceptable for Form I-9 employment eligibility verification purposes.

USCIS noted that because federal recognition of Tribes and communities can change over time, employers should check the Bureau of Indian Affairs (BIA) website to determine if the Tribe or community that issued the membership document is federally recognized. USCIS provided guidance to determine if a document is acceptable as evidence of both identity and employment authorization, or only for identity purposes.

The agency also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the handbook.

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10. Biden Administration Considers TPS, Other Measures for Ukrainians; Advocacy Organizations Weigh In; Consular Services Suspended in Kyiv

According to reports, the Biden administration is considering implementing protections for Ukrainians in the United States, as Russia invades Ukraine in a rapidly developing situation expected to result in many refugees and displaced persons. Such relief in the United States could include a Temporary Protected Status (TPS) designation for Ukraine or a Deferred Enforced Departure (DED) presidential order.

Below are selected highlights of where things stand:

Advocacy Organizations Call for Relief

Immigration and refugee advocacy organizations are calling for the Biden administration to aid Ukrainian nationals in the United States. For example:

  • The Presidents’ Alliance on Higher Education and Immigration, a coalition of more than 500 college and university presidents, called on the Biden administration to designate Ukraine for TPS and special student relief (SSR) for Ukrainian international students residing or studying in the United States. Miriam Feldblum, Executive Director, noted that SSR would allow eligible students to remain in the United States by suspending or altering rules regarding status, full course of study, and work eligibility during the designation period. “International students from Ukraine will likely face significant obstacles and complexities in the coming weeks, months, and years; and uncertainty over their courses or ability to remain in the United States should not be one of those obstacles,” she said.
  • The 15,000-member American Immigration Lawyers Association (AILA) called for expeditious processing and humanitarian relief such as TPS for Ukrainians in the United States and a moratorium on removals.
  • Kids in Need of Defense (KIND) also called for TPS and provided a sign-on letter to the Biden administration. KIND President Wendy Young said, “We encourage nations to receive those fleeing Ukraine at the border, grant them access to asylum procedures, and help these refugees reach and reunify with family that may have fled to other parts of Europe.”

According to estimates, of the roughly 104,600 Ukrainian noncitizens in the United States, about 30,000 would be potential TPS or DED beneficiaries, as they do not have U.S. citizenship or permanent resident status.

Consular Services Suspended; Help at Borders

In related developments, consular services in Kyiv have been suspended. Applicants for U.S. nonimmigrant visas may apply in any country in which they are physically present and where there are appointments available, the Department of State said. Those who have an immigrant visa case currently pending with U.S. Embassy Kyiv and would like to transfer processing of an immigration case to another U.S. Embassy must contact the receiving U.S Embassy in that country to authorize and initiate the transfer.

The Department of State announced that Poland is allowing U.S. citizens to enter Poland through the land border with Ukraine. No advance approval is required. The Department provided additional information for U.S. citizens in Ukraine and for those departing it, including advice on border crossings where consular officers are stationed to provide assistance in Poland, Romania, Hungary, Slovakia, and Moldova.

Donetsk/Luhansk Persons Denied Unrestricted Entry

An executive order issued February 21, 2022, suspends the unrestricted immigrant and nonimmigrant entry into the United States of certain persons operating in the Donetsk or Luhansk regions of Ukraine.

Details:

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11. USCIS No Longer Accepts Single Combined Payments on Certain Forms Filed With H-1B or H-1B1 Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on February 25, 2022, that for all H-1B and H-1B1 petitions received on or after April 1, 2022, USCIS will no longer accept a single, combined fee payment when Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; or Form I-824, Application for Action on an Approved Application or Petition, is filed together with an H-1B or H-1B1 petition (Form I-129, Petition for a Nonimmigrant Worker). Each of these forms received by USCIS on or after April 1 must have its own fee payment instrument or USCIS will reject the entire package. Only the fee for Form I-907, Request for Premium Processing Service, may be combined with the fee for a concurrently filed Form I-129 requesting H-1B classification, USCIS said.

USCIS explained that it is transitioning to electronic processing of immigration benefit requests. As the agency completes this transition, it will be using multiple systems to receipt and process various types of immigration benefit requests. Because H-1B and H-1B1 petitions and related applications are not all processed in the same system, USCIS said it requires a separate payment instrument for each of these forms.

Details:

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12. USCIS Releases Statistics on H-1B Cap Registrations, Cracks Down on Multiples

U.S. Citizenship and Immigration Services (USCIS) recently released statistics on the H-1B cap registration process. Registrations were submitted by more than 37,000 prospective petitioners. Roughly 48 percent of all registrations requested consideration under the advanced degree exemption.

The initial projected number of registrations required to meet the numerical limitations for FY 2022 was lower than the initial projected number of registrations required for FY 2021. A reason for this may be that USCIS is cracking down on multiple registrations on behalf of the same beneficiary. USCIS said that if it finds that a company worked with another entity to submit multiple registrations for the same beneficiary, which would violate the required employer attestation, USCIS will find that registration to be not properly submitted and may deny or revoke the petition.

USCIS also noted:

  • For FY 2021, USCIS received 274,237 H-1B registrations and initially selected 106,100 registrations projected as needed to reach the FY 2021 numerical allocations. USCIS conducted a second selection in August 2020 of an additional 18,315 registrations due to low filing volume from the initial selection. This resulted in a total of 124,415 selected registrations.
  • For FY 2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations. On July 29, 2021, USCIS announced that it conducted a second selection of an additional 27,717 registrations. This resulted in a total of 115,217 selected registrations. The petition filing period based on registrations selected on July 28 began on August 2 and closed on November 3. On November 19, 2021, USCIS announced that it conducted a third selection of an additional 16,753 registrations. This resulted in a total of 131,970 selected registrations. The petition filing period based on registrations selected on November 19 began on November 22, 2021, and closed on February 23, 2022.

USCIS said that those with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

Details:

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13. USCIS Releases Notice in Response to Class Action for Certain Cuban Nationals Denied Adjustment

U.S. Citizenship and Immigration Services (USCIS) released a notice for certain Cuban nationals who were denied Cuban adjustment for lack of a parole document. The notice states that they are eligible to file I-290B (Notice of Appeal or Motion) for up to one year, or a new I-485 (Application to Register Permanent Residence or Adjust Status).

USCIS released the notice in response to a class action lawsuit, Rabelo v. Mayorkas.

Details:

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14. USCIS Urges Eligible Applicants to Switch Employment-Based Categories

U.S. Citizenship and Immigration Services (USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status applications to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories. USCIS said this is because of the availability of an exceptionally high number of employment-based immigrant visas in these green card categories during fiscal year (FY) 2022.

USCIS explained that the overall employment-based annual limit for fiscal year 2022 is approximately twice as high as usual because it includes all unused family-sponsored visa numbers from FY 2021, which was approximately 140,000.

In addition, USCIS noted, under the relevant statute, any visas not required in the fifth employment-based preference category are made available in the first employment-based preference category, and any visas not required in the first employment-based preference category are made available in the second employment-based preference category.

These visas cannot be made available to applicants in the third employment-based preference category because, given the significant number of noncitizens awaiting visas in the second employment-based preference category, these visas must be used for the second preference category., USCIS said.

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15. Visa Bulletin for March Includes Updates on Employment-Based Expirations and Retrogressions

The Department of State’s Visa Bulletin for March 2022 includes the following updates:

  • Final action dates for the employment-based fifth preference I5 and R5 regional center visa categories are “Unavailable” for March. If legislative action extends this category for March, the final action dates would immediately become “Current” for March for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
  • Final action dates have retrogressed for the employment-based fourth and Certain Religious Workers (SR) categories for El Salvador, Guatemala, and Honduras to hold worldwide number use within the maximum allowed under the FY 2022 annual limits.
  • The non-minister special immigrant program expired on February 18, 2022. No SR visas may be issued overseas or final action taken on adjustment of status cases in that category.
  • The SR category is “Unavailable” for all countries for March. If legislative action extends the category, it will become “Current” effective immediately for all countries except El Salvador, Guatemala, and Honduras, which are subject to a May 1, 2017, final action date, and Mexico, which is subject to an April 1, 2020, final action date.

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16. DHS To Propose ‘Fair and Humane’ Public Charge Rule

The Department of Homeland Security (DHS) announced on February 17, 2022, a proposed rule that would regulate how DHS applies the public charge ground of inadmissibility. The proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States, DHS said

DHS Secretary Alejandro N. Mayorkas said, “Under this proposed rule, we will return to the historical understanding of the term ‘public charge’ and individuals will not be penalized for choosing to access the health benefits and other supplemental government services available to them.”

Under the proposed rule, DHS proposes to define “likely at any time to become a public charge” as “likely to become primarily dependent on the government for subsistence.” Consistent with longstanding agency practice, DHS proposes to consider the following public benefits when making a public charge inadmissibility determination:

  • Supplemental Security Income (SSI);
  • Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;
  • State, Tribal, territorial, and local cash assistance for income maintenance; and
  • Long-term institutionalization at government expense.

DHS proposes that it will not consider noncash benefits such as food and nutrition assistance programs, including the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program, most Medicaid benefits (except for long-term institutionalization at government expense), housing benefits, and transportation vouchers. DHS would also not consider disaster assistance received under the Stafford Act; pandemic assistance; benefits received via a tax credit or deduction; or Social Security, government pensions, or other earned benefits.

By law, many categories of noncitizens are exempt from the public charge ground of inadmissibility and would not be subject to the proposed rule, DHS noted. Some exempt categories include refugees, asylees, noncitizens applying for or re-registering for temporary protected status (TPS), special immigration juveniles, T and U nonimmigrants, and self-petitioners under the Violence Against Women Act (VAWA).

Details:

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17. Two California Executives Charged With Fraud in Obtaining Dozens of H-1B Specialty Occupation Visas

The U.S. attorney’s office for the Northern District of California announced that two executives of Perfect VIPs, Inc., which was incorporated in 2010 as a computer chip design product and services company, were indicted on charges of visa fraud and conspiracy to commit visa fraud. One of the executives was also charged with money laundering. The indictment alleges that they submitted approximately 85 fraudulent H-1B visa applications and laundered $1 million in fraud proceeds.

Once the applications were approved, instead of employing the workers, the two executives created a pool of H-1B workers and placed them at employment positions with other employers, not with PerfectVIPs, the indictment alleges. “This practice provided PerfectVIPs an unfair and illegal advantage over employment-staffing firms,” the U.S. attorney’s office stated. During the period of their conspiracy, the indictment alleges, the other employers paid fees of nearly $7 million to PerfectVIPs to cover the cost of the H-1B workers’ wages and salaries as well as a profit markup for PerfectVIPs.

The company is headquartered in San Jose, California. The executives live in Saratoga and Santa Clara.

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18. United States Once Again ‘Welcomes’ Immigrants: USCIS Announces New Mission Statement

U.S. Citizenship and Immigration Services (USCIS) announced a new mission statement after asking its employees to “submit words that they felt best illustrated the agency’s work.” The new mission statement reflects that feedback, along with Biden administration priorities and Director Ur Jaddou’s “vision for an inclusive and accessible agency,” USCIS said in a news release on February 9, 2022. The agency has 19,000 employees and contractors working at more than 200 offices worldwide.

The new mission statement says, “USCIS upholds America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.” The USCIS mission statement web page also lists and describes the agency’s “core values,” including integrity, respect, innovation, and vigilance.

The new mission statement, with its emphasis on welcoming and respect, reflects USCIS’s restoring of the agency’s focus on services. The revision is a shift away from the previous administration’s changes emphasizing security and dropping the phrase, “America’s promise as a nation of immigrants.”

In a statement announcing the new mission statement, Director Jaddou said, “At its core, USCIS is about delivering decisions to families, businesses, workers, and those seeking refuge in our country on their applications, petitions, requests, and appeals. This new mission statement reflects the inclusive character of both our country and this agency.”

The American Immigration Lawyers Association (AILA) “applauded” the new mission statement. Benjamin Johnson, AILA Executive Director, said the new statement “hopefully signals a return to a welcoming, service-driven USCIS that faithfully administers its statutory purpose with integrity.”

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19. USCIS Updates Guidance, Changes Maximum Validity Period for EADs for Certain Applicants

U.S. Citizenship and Immigration Services (USCIS) published updated policy guidance, effective February 7, 2022, that changes the maximum validity period that may be granted for employment authorization documents (EADs) issued to certain applicants, and provides general guidance on adjudicating Form I-765, Application for Employment Authorization.

USCIS is now generally granting new and renewed EADs valid for two years to applicants in the following categories:

  • Admitted as a refugee (a)(3)
  • Granted asylum (a)(5)
  • Granted withholding of deportation or removal (a)(10)
  • Violence Against Women Act self-petitioner (c)(31)

Additionally, USCIS is generally granting new and renewed EADs, up to the end of the parole or deferred action period, to applicants in the following categories:

  • Paroled into the United States for urgent humanitarian reasons or significant public benefit (c)(11)
  • Granted deferred action (non-DACA) (c)(14)

USCIS said that increasing the maximum validity period for these categories “will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.”

New and renewed EADs issued for affected categories on or after February 7, 2022, will reflect the updated validity periods. EADs issued before February 7, 2022, are not affected. USCIS said it will continue to issue replacement EADs with the same validity date as the original EAD.

Details:

  • USCIS alert, Feb. 7, 2022,

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20. USCIS Clarifies Guidance on Temporary Need Requirement for H-2B Workers in Guam and Northern Marianas

U.S. Citizenship and Immigration Services (USCIS) clarified its guidance on how petitioners may demonstrate that they qualify for an exemption from the temporary need requirement for a nonimmigrant visa petition for a temporary nonagricultural H-2B worker on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) that falls under the Fiscal Year 2021 National Defense Authorization Act.

Specifically, the guidance clarifies how petitioners may demonstrate, depending on the facts presented in each case, that they qualify for the exemption based on contracts or subcontracts that are “supporting” or “adversely affected by” the military realignment on Guam and in the CNMI.

Details:

  • USCIS alert, Feb. 8, 2022,

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21. New Lockbox Facility Opens in Illinois

U.S. Citizenship and Immigration Services (USCIS) opened a new lockbox facility in Elgin, Illinois, and is “beginning to transition incoming work to the new location.”

On February 1, 2022, USCIS added Elgin as a filing location for certain applicants Form I-751, Petition to Remove Conditions on Residence. In the coming weeks, the agency plans to move additional workloads to the Elgin lockbox, including certain applicants filing Form N-400, Application for Naturalization, and Form I-130, Petition for Alien Relative. The transition to Elgin is expected to be completed by late summer 2022.

USCIS said it also expects to move the lockbox facility in Arizona from Phoenix to Tempe in fall 2022.

Details:

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22. DHS, VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Families

On February 7, 2022, the Department of Homeland Security (DHS), in partnership with the Departments of Veterans Affairs and Defense, launched new resources to support U.S. noncitizen service members, veterans, and their families. Through its Immigrant Military Members and Veterans Initiative (IMMVI), DHS said it will host a “one-stop online center to consolidate relevant federal resources.” As part of the resource center, DHS has also created a portal for veterans who need assistance in applying to return to the United States or accessing VA benefits to which they may be entitled.

Details:

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New Publications and Items of Interest

Listening session on stateless individuals. USCIS will host a listening session on Tuesday, March 8, 2022, from 12:30 to 1:30 pm ET on immigration protections for stateless individuals living in the United States. USCIS seeks feedback on terms and definitions, protections, evidentiary issues, and the determination process. USCIS said that without congressional action, it does not have the legal authority to create an immigration status or path to naturalization for individuals based solely on statelessness, but that it is considering what existing immigration protections stateless individuals might be eligible for and benefit from, and how to maximize their access to such protections. https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-listening-session-immigration-protection-for-stateless-individuals-living-in-the-united-states

H-2A employer data hub. USCIS has launched an H-2A employer data hub to provide information to the public on employers or agents petitioning for H-2A workers. It follows the launch of the H-1B Data Hub in 2019 and the H-2B Data Hub in 2021. The data hub allows the public to search for H-2A petitioners by fiscal year from 2015 through 2021. https://www.uscis.gov/newsroom/alerts/uscis-launches-h-2a-employer-data-hub

Lockbox tip sheet. The Citizenship and Immigration Services Ombudsman worked with U.S. Citizenship and Immigration Services (USCIS) to develop a tip sheet on how to avoid common mailing errors when filing with the USCIS Lockbox. The tip sheet also provides information on navigating recent changes to USCIS Lockbox filing locations. https://www.dhs.gov/sites/default/files/2021-12/Lockbox%20Tip%20Sheet%20FINAL%2012.23.21.pdf

Agency Twitter accounts:

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by Forbes in “Immigration Policies at USCIS Lead to Denials of L-1B Petitions.” She said, “Some at USCIS have never understood the L-1 standard even though they have good guidance in the Adjudicator’s Field Manual. To properly apply it, each case must be evaluated individually—you cannot template an adjudication.” She also said she believes that a number of adjudicators “do not understand what preponderance of the evidence means” and are not comfortable approving cases where something is “more likely than not,” even though that is the legal standard. https://www.forbes.com/sites/stuartanderson/2022/02/16/immigration-policies-at-uscis-lead-to-denials-of-l-1b-petitions/?sh=60419abe1301

Vic Goel (bio: https://www.abil.com/lawyers/lawyers-goel.cfm?c=US) was quoted by Forbes in “Immigration Policies at USCIS Lead to Denials of L-1B Petitions.” He said, “Given that most clients and attorneys understand the requirements and aren’t interested in wasting significant time or money in filing speculative cases that aren’t approvable, it’s odd that denial rates for L-1B cases are substantially higher than for other business immigration cases. USCIS policy sets a very high bar for approval of cases involving specialized knowledge workers, requiring firms to document how a given worker’s knowledge of a company’s product, processes, research, or other interests is special or advanced relative to other employees. While the standard is not insurmountable, USCIS applies it in a way that favors documentary evidence while discounting the company’s own assessments of the worker’s importance and knowledge, notwithstanding that company officials are typically in the best position to determine whether an employee’s knowledge is truly special.” https://www.forbes.com/sites/stuartanderson/2022/02/16/immigration-policies-at-uscis-lead-to-denials-of-l-1b-petitions/?sh=60419abe1301

Charles Foster, of Foster LLP, addressed the state of immigration during his presentation, “The Need for U.S. Immigration Reform,” in a meeting for the Kiwanis Club of Houston, Texas, on February 17, 2022.

Mr. Foster was interviewed by KPRC in “Galveston County Law Enforcement Continues Sending Resources to the Border.” He said, “Congress has to solve this.” Regarding the impact on immigration courts of increased incidents along the border, Mr. Foster said, “We have taken a bad situation and it’s getting worse daily. We need more immigration judges, trial attorneys and asylum officers.”

Mr. Foster was a featured speaker at the 2022 kickoff meeting for ITServe Alliance Houston, the Houston, Texas, branch of a large network of Indian American IT and related companies.

Mr. Foster spoke at the grand opening of the Blossom Hotel on February 8, 2022, along with Bob Harvey, Chairman of the Greater Houston Partnership, and Houston Mayor Sylvester Turner. The Blossom Hotel is near the Texas Medical Center’s planned “TMC3” project, the “world’s largest life sciences campus,” which will bring together a large number of tech companies involving health-related technologies from across the United States. https://www.tmc.edu/news/2021/08/texas-medical-center-launches-worlds-largest-life-science-campus/

Mr. Foster will be a keynote speaker at a sculpture dedication honoring Lyndon Baines Johnson. The event will be held at the Holocaust Museum of Houston, Texas, on Monday, February 21, 2022.

Karuna Chandani Simbeck was promoted to partner at Klasko Immigration Law Partners, LLP. As part of the EB-5 team, Ms. Simbeck has assisted hundreds of immigrant investors. With years of experience in EB-5, she has prepared hundreds of I-526 petitions for clients from countries such as India, South Africa, the Philippines, Singapore, Vietnam, Turkey, the United Kingdom, and China. Ms. Simbeck is often called on to review petitions, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs) for other law firms, among her other activities. https://www.klaskolaw.com/wp-content/uploads/2022.01-Press-Release-Karuna-Chandani-Simbeck-Promoted-to-Partner.pdf

Andrew Zeltner was promoted to partner at Klasko Immigration Law Partners, LLP. He is an experienced employment-based immigration attorney and has been assisting clients for 20 years. He handles a wide array of corporate immigration matters and also assists individual clients. He has particular experience with hospitals and organizations in the medical field, artists and performers, universities, and innovative startups. He has significant experience providing employment-based U.S. immigration services. He has provided extensive advice to human resources professionals and corporate counsel regarding immigration compliance matters including I-9 and LCA compliance issues. https://www.klaskolaw.com/news/press-release-andrew-j-zeltner-elected-to-partnership-at-klasko-immigration-law-partners/

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was an invited speaker at the American Immigration Lawyers Association’s New England Chapter meeting on February 24, 2022, where he spoke on strategies in the face of visa retrogression in employment-based categories, including multiple filings for the same employee in different categories. Magaly R. Cheng was the other invited speaker. She is a partner in Clark Lau LLC.

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?,” http://blog.cyrusmehta.com/2022/02/huh-why-should-requesting-a-transfer-of-underlying-basis-with-an-i-485-supplement-j-restart-the-180-day-portability-clock.html; “Maintenance of H-1B Status After Travelling Back on Advance Parole: Executive Legerdemain under the Cronin Memo.”

Mr. Mehta was Program Chair of the Practising Law Institute’s “Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas” on February 3, 2022. The webcast of this program is at https://www.pli.edu/programs/B/basic-immigration-law

Mr. Mehta was Program Chair of the Practising Law Institute’s “Asylum, Special Immigrant Juvenile Status, Crime Victim and Other Immigration Relief 2022” on February 4, 2022. The webcast of this program is at https://www.pli.edu/programs/asylum-special-immigrant-juvenile-status-crime-victim-and-other-immigration-relief

Mr. Mehta was a speaker at the American Immigration Lawyers Association’s Washington Chapter Ethics CLE on February 10, 2022.

Siskind Susser, Kuck Baxter, and Joseph & Hall have partnered to file a lawsuit challenging USCIS’s and the State Department’s refusal to process EB-5 regional center cases. They are working with the Galati Law Firm on this case. The deadline for plaintiffs to join the case is March 5, 2022. https://www.immpactlitigation.com/eb-5-regional-center-litigation-2022/

Wolfsdorf Rosenthal LLP has published several new blog posts: “Short Video Series: H-1B Process Videos”; “DHS Announces National Interest Exception for ‘Noncitizen Nonimmigrants’ Traveling From Ukraine With a U.S. Citizen or Lawful Permanent Resident”; “March 2022 Visa Bulletin Update”; “2022 Immigration Outlook: Countries Compete for Talent—Will the U.S. Be Left Behind?”; “EB-5 Regional Center Program Update—Another Short-Term Extension Without Regional Center Reauthorization Possible,” “H-1B Cap Webinar: Critical Registration Process Updates and H-1B Cap FAQs From HR Professionals,” and “A Video Guide to Navigating H-1B Cap Season.” https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will moderate a free public webinar on Wednesday, March 9, 2022, from 1 to 2 pm ET, “After the Fall: The Future of Afghan Allies Fleeing the Taliban.” Speakers include Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. https://ecornell.cornell.edu/keynotes/overview/K030922a/

Mr. Yale-Loehr was quoted by the Cornell Chronicle in “Experts: Ukraine War Puts World in ‘Uncharted Territory.’ ” Mr. Yale-Loehr served on a panel on March 4, 2022, to discuss the humanitarian crisis just beginning after the Russian invasion of Ukraine. Mr. Yale-Loehr noted that, as high as the numbers are of Ukrainians fleeing their country, we shouldn’t forget other hot spots like Syria and Afghanistan that have contributed to the highest levels of displacement on record, with an estimated 84 million people displaced worldwide by persecution, conflict, violence, and human rights violations. “Our international refugee system is reeling from all these crises and wars. The war in Ukraine is simply the most recent.” Mr. Yale-Loehr advised those wondering how to help to donate to organizations such as the International Rescue Committee or International Refugee Assistance Project and ask members of Congress to spend more on refugee assistance and increase the number of refugees admitted by the United States. “This shows how interconnected we all are,” he said. https://news.cornell.edu/stories/2022/03/experts-ukraine-war-puts-world-uncharted-territory (recording of livestream: https://ecornell.cornell.edu/keynotes/view/K030422/)

Mr. Yale-Loehr was interviewed by Al Jazeera as part of a show about Afghans at risk. Mr. Yale-Loehr’s segment starts at about 19:00 in the show. https://www.youtube.com/watch?v=pvkfo_xjFiQ

Mr. Yale-Loehr was quoted by the New York Times in “Afghans Who Bet on Fast Path to the U.S. Are Facing a Closed Door.” He said, “The refugee resettlement program is overwhelmed and lacks resources because of all the cuts the prior administration made.” https://www.nytimes.com/2022/02/16/us/afghan-refugees-humanitarian-parole.html (available by subscription)

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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