In this issue:

1. Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only, under the recently announced H-2B supplemental cap temporary final rule.

2. USCIS Releases New Forms for EB-5 Immigrant Investor Program – U.S. Citizenship and Immigration Services has released two new forms under the EB-5 Reform and Integrity Act of 2022.

3. SEVIS Update: COVID-19 Guidance Extended for Nonimmigrant Students – U.S. Immigration and Customs Enforcement’s March 2020 guidance continues for the 2022-23 academic year only for nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to the Student and Exchange Visitor Program’s existing regulations regarding online learning.

4. CBP Expands Biometric Facial Recognition Technology at U.S. International Airports – Travelers arriving at an international airport in the United States will pause for a photo at the primary inspection point. U.S. travelers and foreign nationals who are not required to provide biometrics and wish to opt out of the new biometric process can notify a CBP officer as they approach the primary inspection point.

5. Public Charge Resources Webpage Updated – Among other updates, a question-and-answer section addresses concerns and misconceptions about the public charge ground of inadmissibility.

6. Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications – A group of investment and capital firms filed a lawsuit against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022.

7. USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions – U.S. Citizenship and Immigration Services is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

8. DOL Clarifies Method of Contacting AFL-CIO Required Under Rule Increasing Number of H-2B Visas Available in Second Half of FY 2022 – Examples of how to contact the AFL-CIO, as provided in a temporary final rule, include emailing or mailing the job order, along with a request for assistance to recruit workers, to the appropriate AFL-CIO office.

9. DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications – The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the Wage and Hour Division may implement.

10. Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year – The visas are for U.S. employers seeking to employ additional temporary nonagricultural workers on or after April 1, 2022, through September 30, 2022.

11. DHS Announces TPS Designation, Registration Process for Afghans – The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible.

12. June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability – Among other things, the bulletin notes that high number use in the Employment Third Preference “Other Workers” category has necessitated the establishment of a worldwide final action date in June.

13. Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border – The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.

14. New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program – USCIS published two new forms for regional center designation under the EB-5 Immigrant Investor Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027. The agency held a related listening session and released a Q&A, and members of Congress sent a letter to the Department of Homeland Security.

15. Foreign Labor Certification Updates – The Department of Labor’s Office of Foreign Labor Certification announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations.

16. USCIS Corrects Eligibility Date on South Sudan TPS-Based EADs – USCIS corrected “September 17, 2021” to “May 2, 2022” as the eligibility date that should be showing on South Sudan temporary protected status-based employment authorization documents (EADs) to receive an automatic 180-day EAD extension through November 1, 2022.

17. New Lockbox Filing Location Updates Webpage – USCIS launched a new webpage with lockbox filing location updates.

18. State Dept. Updates Visa Reciprocity Schedule for Kenya – On May 9, 2022, the Department of State updated the visa reciprocity schedule for Kenya for several nonimmigrant visa categories.

19. USCIS Increases Automatic Work Permit Extension Period for Certain Applicants – USCIS announced a temporary final rule, effective May 4, 2022, that increases to up to 540 days the automatic extension period for work authorization and Employment Authorization Documents (EADs) available to certain EAD renewal applicants. The rule is expected to affect approximately 87,000 workers who have filed for renewal of their work authorization and whose 180-day automatic extension periods have expired or are about to expire.

20. State Dept. Appeals Four Court Orders on Diversity Visa Adjudications and Processing – The Department of State released a statement summarizing four court orders regarding the reservation of numbers for and/or adjudication of DV-2020 and DV-2021 diversity visas, and announcing that it is appealing the orders “because the Department believes the courts misinterpreted the law.”

21. Case Processing Info Changes Announced – Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types.

22. CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders – To reduce wait times, U.S. Customs and Border Protection is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.

23. ABIL Global: Schengen Area – This article discusses how to calculate the 90/180-days allowance for non-European Union nationals traveling to Schengen countries, and the new Electronic Entry System.

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

Download:

ABIL Immigration Insider – June 2022

1. Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022

U.S. Citizenship and Immigration Services (USCIS) announced on May 31, 2022, that it has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only, under the recently announced H-2B supplemental cap temporary final rule, which increased by up to 35,000 the cap for additional H-2B nonimmigrant visas through the end of fiscal year (FY) 2022.

The random selection, completed on May 27, included all H-2B cap-subject petitions filed under the H-2B returning worker allotment that were received between May 19 and May 25. Petitions accepted for processing will have a receipt date of May 31, 2022.

USCIS said that petitioners whose workers were not selected for the 23,500 returning worker allotment “are encouraged to refile for workers from El Salvador, Guatemala, Honduras and Haiti while visas for that allotment remain available.” The final date for filing petitions for nationals of those countries who are exempt from the returning worker requirement is September 15, 2022, or when the cap is reached, whichever occurs first.

The agency will continue to accept H-2B petitions for workers filing under the El Salvador, Guatemala, Honduras, and Haiti allotment, as well as those that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their 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 from November 28, 2009, until December 31, 2029.

Details:

• “Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022,” USCIS alert, May 31, 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

• “Temporary Increase in H-2B Nonimmigrant Visas for FY 2022,” USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2022

• “DHS and DOL Announce Availability of Additional H-2B Visas for Second Half of Fiscal Year,” USCIS news release, May 16, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-second-half-of-fiscal-year

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2. USCIS Releases New Forms for EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) has released two new forms under the EB-5 Reform and Integrity Act of 2022. The new forms are:

• Form I-956F, Application for Approval of an Investment in a Commercial Enterprise
• Form I-956G, Regional Center Annual Statement

USCIS explained that Form I-956F can only be filed by an approved regional center. Form I-956F is similar in some respects to an “exemplar” submission on Form I-924 under the previous program; however, Form I-956F is required by statute for regional centers to apply for approval of each particular investment offering through an associated new commercial enterprise. Form I-956G takes the place of Form I-924A from the previous program but incorporates the increased statutory reporting requirements.

The next series of forms to be released are Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. USCIS will notify stakeholders once these forms are available.

Effective June 2, 2022, Forms I-956F and I-956G must be submitted in compliance with new program requirements. The filing fee is $17,795 for Form I-956F and $3,035 for Form I-956G.

Details:

• USCIS alert, June 2, 2022, https://www.uscis.gov/newsroom/alerts/uscis-releases-new-forms-for-immigrant-investor-program

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3. SEVIS Update: COVID-19 Guidance Extended for Nonimmigrant Students

U.S. Immigration and Customs Enforcement (ICE) released guidance regarding distance learning to all Student and Exchange Visitor Information System (SEVIS) users to clarify that its March 2020 guidance continues for the 2022-23 academic year only for nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to the Student and Exchange Visitor Program’s existing regulations regarding online learning.

The March 2020 guidance “enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19,” ICE said.

Details:

• “Broadcast Message: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year,” ICE, May 31, 2022, https://www.ice.gov/doclib/sevis/pdf/bcm2205-03.pdf

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4. CBP Expands Biometric Facial Recognition Technology at U.S. International Airports

U.S. Customs and Border Protection (CBP) has expanded biometric facial comparison technology at all international airports across the United States under the “Simplified Arrival” process. CBP said that this expansion complements biometric boarding at select departure locations.

Travelers arriving at an international airport will pause for a photo at the primary inspection point. A CBP officer will review and query the travel document, which will retrieve the traveler’s passport or visa photo from government holdings and compare it to the new photo. CBP said the process “takes a few seconds and is more than 98% accurate.”

CBP said that U.S. travelers and foreign nationals who are not required to provide biometrics and wish to opt out of the new biometric process can notify a CBP officer as they approach the primary inspection point. These travelers must present a valid travel document for inspection by a CBP officer and will be processed consistent with existing requirements for admission into the United States.

CBP explained that “Simplified Arrival” is an enhanced international arrival process that uses facial biometrics to automate the manual document checks required for admission into the United States. The process fulfills a Congressional mandate to biometrically record the entry and exit of non-U.S. citizens. Foreign travelers who have traveled to the United States previously “may no longer need to provide fingerprints, as their identity will be confirmed through the touchless facial biometric process.” CBP said that more than 171 million travelers have participated in the biometric facial comparison process at air, land, and sea ports of entry.

Details:

• CBP media release, June 2, 2022,

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5. Public Charge Resources Webpage Updated

U.S. Citizenship and Immigration Services (USCIS) has updated its public charge resources webpage “with more information to help reduce undue fear and confusion among immigrants and their families, including U.S. citizens and their children, that may prevent them from obtaining access to critical government services available to them.”

A question-and-answer section addresses concerns and misconceptions about the public charge ground of inadmissibility. For example, USCIS does not consider vaccines or public benefits specifically related to the COVID-19 pandemic when making public charge determinations. “We encourage everyone, including noncitizens, to seek necessary medical care, including treatment or preventive services for COVID-19. Noncitizens may seek pandemic-related benefits and services (including food assistance, housing programs, and others) for which they are eligible—without fear of negative consequences to their immigration status.”

The updated content also “clarifies that relatively few noncitizens in the United States are both subject to the public charge ground of inadmissibility and eligible for the public benefits considered under the 1999 Interim Field Guidance, including Supplemental Security Income, Temporary Assistance for Needy Families, and programs (including Medicaid) supporting noncitizens who are institutionalized for long-term care at government expense,” USCIS said.

Details:

• USCIS alert, June 3, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-public-charge-resources-webpage-to-provide-information-on-the-public-charge-ground-of

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6. Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications

A group of investment and capital firms filed a lawsuit on May 24, 2022, against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services (USCIS) decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022, which was signed into law following a lapse in authorization for the EB-5 Regional Center Program. Plaintiffs say that by categorically decertifying more than 600 existing EB-5 regional centers and requiring them to recertify, USCIS “eviscerated” the program and determined that a wholly new regional center program was created rather than following congressional intent to reauthorize the program with a few changes and allow existing regional centers to continue their work.

Alleging that USCIS’s action was “unlawful for a host of reasons,” plaintiffs said the agency’s action meant that “all existing regional centers, which already have billions of dollars in invested capital, ongoing development projects, and investors awaiting adjudication of their visa petitions, must effectively pause all revenue-generating operations (while still maintaining regulatory obligations to existing investors) indefinitely until USCIS approves their new applications. At current processing rates, it will take well over a decade for more than 600 programs to become redesignated.”

Plaintiffs are represented by H. Ronald Klasko and Daniel B. Lundy, of Klasko Immigration Law Partners LLP, and Paul W. Hughes, Andrew A. Lyons-Berg, and Alex C. Boota, of McDermott Will & Emery LLP.

This is the second lawsuit challenging USCIS’s claim that all regional centers must be redesignated. A preliminary injunction hearing in Behring Regional Center LLC v. Mayorkas, No. 3-22-cv-02487-VC (N.D. Cal.), will be held June 2.

Details:

• EB5 Capital v. DHS, May 24, 2022,
• “DHS ‘Decimated’ EB-5 Visa Capital Firms, Investors Say,” Law360, May 24, 2022, https://www.law360.com/articles/1496566/dhs-decimated-eb-5-visa-capital-firms-investors-say (registration required)

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7. USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions

U.S. Citizenship and Immigration Services (USCIS) is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing applies only to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS said. Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

USCIS said the expansion will occur in phases:

• Beginning June 1, 2022, USCIS is accepting Form I-907 requests for E13 multinational executive and manager petitions received on or before January 1, 2021.
• Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
• USCIS will continue working toward premium processing availability of additional Form I-140 petitions, Form I-539, and Form I-765 in fiscal year 2022.

USCIS said it will reject premium processing requests for these Form I-140 classifications that were filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request.

For the month of June, USCIS will accept both the 09/30/20 and the 05/31/22 editions of Form
I-907. Starting July 1, the agency will reject the older 09/30/20 edition of Form I-907.

Details:

• USCIS alert, May 24, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form-i-140

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8. DOL Clarifies Method of Contacting AFL-CIO Required Under Rule Increasing Number of H-2B Visas Available in Second Half of FY 2022

A temporary final rule issued by the Department of Labor (DOL) on May 18, 2022, included additional recruitment requirements for certain employers. One such requirement is that where the occupation or industry is traditionally or customarily unionized, “the employer must contact (by mail, email or other effective means) the nearest American Federation of Labor and Congress of Industrial Organizations [AFL-CIO] office covering the area of intended employment and provide written notice of the job opportunity, by providing a copy of the job order placed … and request assistance in recruiting qualified U.S. workers for the job.”

Examples of such contact provided in the rule include emailing or mailing the job order, along with a request for assistance to recruit workers, to the appropriate AFL-CIO office. To aid employers who must conduct this additional recruitment step, one effective means of contacting the nearest AFL-CIO office covering the area of intended employment is to email the job order and request for assistance to [email protected] or contacting the national AFL-CIO by mail at:

AFL-CIO
Attn: H-2B
815 Black Lives Matter Plaza, NW
Washington, DC  20005

DOL said that when received, the agency will distribute these materials to the most appropriate local AFL-CIO office serving the area of intended employment for that job opportunity. DOL said employers “are encouraged to contact the AFL-CIO using the email or mailing address above, though contact directly with the AFL-CIO office covering the area of intended employment is also acceptable. Employers are reminded to retain documentation of contact with the AFL-CIO as required.”

Details:

• DOL announcement, May 27, 2022, https://www.dol.gov/agencies/eta/foreign-labor
• Temporary final rule, 87 Fed. Reg. 30334 (May 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-18/pdf/2022-10631.pdf

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9. DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications

The Department of Labor’s Wage and Hour Division (WHD) released a bulletin to the field regarding employment of H-2B workers in unapproved job classifications (i.e., a job classification not listed on the Application for Temporary Employment Certification (TEC), Form ETA-9142B). The memo notes that such employment violates the requirement that employers may not place H-2B workers in positions not listed on the TEC application.

The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the WHD may implement.

Details:

• “Employment of H-2B Workers in a Job Classification Not Listed on the TEC Application (Form ETA-9142B) in the H-2B Visa Program,” DOL/WHD Field Assistance Bulletin No. 2022-3, Apr. 13, 2022, https://www.dol.gov/sites/dolgov/files/WHD/fab/2022-3.pdf

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10. Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced a temporary final rule making available an additional 35,000 H-2B temporary nonagricultural worker visas during the second half of fiscal year (FY) 2022. The visas are for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers. The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022.

In support of the temporary final rule, the Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-6 and accompanying instructions. The TFR requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. This attestation must be submitted to U.S. Citizenship and Immigration Services along with Form I-129 in support of an H-2B application subject to the H-2B cap by September 30, 2022.

Details:

• USCIS news release, May 16, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-second-half-of-fiscal-year
• DHS/DOL temporary final rule, 87 Fed. Reg. 30334 (May 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-18/pdf/2022-10631.pdf
• DOL forms, including Attestation for Employers, https://www.dol.gov/agencies/eta/foreign-labor/forms

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11. DHS Announces TPS Designation, Registration Process for Afghans

The Department of Homeland Security has provided information on how to register for temporary protected status (TPS) under Afghanistan’s 18-month designation. The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible for TPS under the designation of Afghanistan.

To be eligible for TPS under this designation, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and continuous physical presence in the United States since May 20, 2022. Afghan nationals currently not residing in the United States or who arrived in the United States after March 15, 2022, are not eligible for TPS under this designation.

DHS said that through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis for humanitarian reasons for a period of two years and received work authorization. These individuals may also be eligible for TPS.

Details:

• Designation of Afghanistan for Temporary Protected Status, DHS (USCIS), 87 Fed. Reg. 30976 (May 20, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-20/pdf/2022-10923.pdf
• USCIS news release, May 19, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-announces-registration-process-for-temporary-protected-status-for-afghanistan
• “Secretary Mayorkas Designates Afghanistan for Temporary Protected Status,” DHS, Mar. 16, 2022, https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status

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12. June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability

The Department of State’s Visa Bulletin for June 2022 includes the following information:

1. Establishment of Employment Third Preference “Other Workers” (EW) Final Action Date

High number use in the Employment Third Preference “Other Workers” (EW) category has necessitated the establishment of a worldwide final action date in June to hold number use within the maximum allowed under the FY-2022 annual limit. All countries are subject to a final action date of 08MAY19 except for China-mainland born, which is subject to a 01JUN12 final action date and India, which is subject to a 15JAN12 final action date.

1. Establishment of C5 and T5 Final Action Date and Application Filing Date for China-Mainland Born

It has become necessary to establish a final action date and application filing date for C5 and T5 China-mainland born because sufficient demand has materialized as readers were cautioned was a possibility in Item D of the May 2022 Visa Bulletin. China-mainland born C5 and T5 applicants are subject to a 22NOV15 final action date and an application filing date of 15DEC15.

1. Availability of Diversity Visas (DV)

Most regions have been set to “Current” for June 2022 in an effort to maximize number use during the DV-2022 program year. However, rank cut-offs could be re-established for any region or country in future months to keep number use within the applicable annual limits.

Details:

• Dept. of State Visa Bulletin for June 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-june-2022.html

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13. Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border

Shortly before the Centers for Disease Control (CDC) was set to terminate its Trump-era COVID-19 pandemic restriction at the U.S.-Mexico border, known as “Title 42,” a federal judge in Louisiana blocked its termination temporarily with a nationwide preliminary injunction. The judge found that several dozen Republican-led states were likely to prevail on their claims against terminating the policy based on the Administrative Procedure Act, and noted that termination would negatively affect plaintiff states and the Department of Homeland Security. He concluded that the policy should continue while the states’ lawsuit proceeds.

The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.

Details:

• State of Louisiana v. CDC, https://s3.documentcloud.org/documents/22026721/title-42-preliminary-injunction.pdf
• “Federal Judge Blocks Biden Administration From Lifting Title 42 for Now,” CNN, May 20, 2022, https://www.cnn.com/2022/05/20/politics/title-42-biden-us-mexico-border/index.html

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14. New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) published two new forms for regional center designation under the EB-5 Immigrant Investor Program: Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027.

Below are highlights of related news:

• USCIS said it will continue to adjudicate Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and will adjudicate Form I-829 petitions associated with Form I-526, Immigrant Petition by Alien Entrepreneur, filed before March 15, 2022, under the applicable eligibility requirements in place before enactment of the EB-5 Reform and Integrity Act of 2022.
• USCIS said it also has resumed processing of regional center-based Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before the sunset of the previous regional center program on June 30, 2021. The agency will adjudicate all Form I-526 petitions filed before March 15, 2022, according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place before the enactment of the new law). USCIS will continue to process Form I-526 petitions under the “visa availability approach,” “prioritizing those Form I-526 petitions for investors with an available visa or a visa that will be available soon.” USCIS will continue to reject all Form I-526 petitions received on or after July 1, 2021, when the petition indicates that the petitioner’s investment is associated with a regional center.
• The filing fee for the I-956 is $17,795. (No, that’s not a typo.) There is no filing fee for the I-956H, but a biometric services fee of $85 per person is required. Filing and biometric service fees are final and nonrefundable, regardless of any action USCIS takes on the application, or if the applicant withdraws the request. USCIS will reject the form if the applicant submits an incorrect fee.
• The agency released a related Q&A and held a “Listening Session” on April 29, 2022, that received negative reviews.
• Four senior members of Congress sent a letter on May 9, 2022, to the Department of Homeland Security (DHS). Among other things, the letter calls for DHS to confirm compliance with the new integrity measures required under the EB-5 Reform and Integrity Act of 2022 “without the need for a full-scale redesignation of existing regional centers.” The letter recommends a “transition” to avoid administrative burdens for the agency and “unnecessary complications to designated regional centers who have remained in good standing with USCIS and complied with the rules even during the program’s lapse.” The letter says, “Current guidance on the USCIS website requiring new regional center designations for every existing regional center is confusing and causing great concern in the EB-5 stakeholder community. We believe that there should be stakeholder engagement and then guidance on the implementation of the program.” The letter notes that an interpretation requiring new regional center designations would “result in all existing investors without approved conditional permanent residency facing denial.” The letter was signed by Rep. Jerrold Nadler (D-NY) and Sens. Chuck Schumer (D-NY), John Cornyn (R-TX), and Lindsey Graham (R-SC).

Details:

• USCIS alert, https://www.uscis.gov/newsroom/alerts/two-new-forms-published-for-regional-center-designation
• USCIS alerts, EB-5 Immigrant Investor Program, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program
• USCIS Q&A (EB-5 Questions and Answers, updated April 2022), https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers-updated-april-2022
• EB-5 Reform and Integrity Act of 2022 (H.R. 2471, Consolidated Appropriations Act, 2022), https://www.congress.gov/bill/117th-congress/house-bill/2471/
• USCIS EB-5 Reform and Integrity Act of 2022 Listening Session, https://www.uscis.gov/outreach/notes-from-previous-engagements/uscis-eb-5-reform-and-integrity-act-of-2022-listening-session

• Listening Session remarks by Ur Jaddou, USCIS Director, Apr. 29, 2022, https://www.uscis.gov/sites/default/files/document/outreach-engagements/EB-5_Reform_and_Integrity_Act_of_2022_Listening_Session.pdf

• Form I-956, Application for Regional Center Designation, https://www.uscis.gov/i-956
• Form I-956H, Bona Fides of Persons Involved with Regional Center Program, https://www.uscis.gov/i-956
• “USCIS Drops Bombshell EB-5 Q&A Hours Before One-Sided, Overwhelmingly Negative “Listening Session,” Investment Migration Insider, May 3, 2022, https://www.imidaily.com/program-updates/uscis-drops-bombshell-eb-5-qa-hours-before-one-sided-overwhelmingly-negative-listening-session/

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15. Foreign Labor Certification Updates

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations. Below are highlights.

Public disclosure data and selected program statistics for Q2 of fiscal year (FY) 2022. The OFLC released a comprehensive set of public disclosure data through the second quarter of FY 2022. The OFLC drew the data from employer applications requesting prevailing wage determinations and labor certifications for the PERM, Labor Condition Application (LCA) (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The files include all final determinations OFLC issued for these programs during the October 1, 2021, through March 31, 2022, reporting period of FY 2022. OFLC also released selected program statistics for Q2 of FY 2022 for the same programs. https://www.dol.gov/agencies/eta/foreign-labor/performance

H-2B Foreign Labor Recruiter List for Q2 of FY 2022. The OFLC published an updated list of foreign labor recruiters for the H-2B program. The list contains the name and location of persons or entities identified on Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B application. The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during the October 1, 2021 through March 31, 2022. https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list (Foreign Labor Recruiter List); https://www.dol.gov/agencies/eta/foreign-labor/faqs/print (FAQs)

Tips and assistance for stakeholders filing applications for prevailing wage determinations. The OFLC hosted a webinar on April 19, 2022, providing tips and assistance for stakeholders on the process of filing Form ETA-9141, Application for Prevailing Wage Determination, for the PERM and LCA programs. The recording and presentation materials are linked via the Prevailing Wage Information and Resources page (scroll down to Webinars). https://www.dol.gov/agencies/eta/foreign-labor/wages

Details:

• OFLC announcements, https://www.dol.gov/agencies/eta/foreign-labor

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16. USCIS Corrects Eligibility Date on South Sudan TPS-Based EADs

U.S. Citizenship and Immigration Services (USCIS) issued a correction on May 10, 2022, to its notice on the extension and redesignation of South Sudan for temporary protected status (TPS), which was published on March 3, 2022. Under the “General Employment-Related Information for TPS Applicants and Their Employers” section of the original notice, USCIS corrected “September 17, 2021” to “May 2, 2022” as the eligibility date that should be showing on South Sudan TPS-based employment authorization documents (EADs) to receive an automatic 180-day EAD extension through November 1, 2022.

Details:

• USCIS notice/correction, 87 Fed. Reg. 28030 (May 10, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-10/pdf/2022-10018.pdf

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17. New Lockbox Filing Location Updates Webpage

U.S. Citizenship and Immigration Services (USCIS) launched a new webpage with lockbox filing location updates. For example, the webpage notes that:

• On May 2, 2022, USCIS updated the filing locations for applicants filing Form I-821, Application for Temporary Protected Status, under the designation for Ukraine.
• On May 9, 2022, USCIS added the filing locations for certain applicants filing Form I-765, Application for Employment Authorization, under eligibility category (c)(14) (a noncitizen granted deferred action).
• On May 15, 2022, USCIS added the filing locations for applicants filing Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program, to request designation as a regional center.

Details:

• USCIS Lockbox Filing Location Updates, updated May 10, 2022, https://www.uscis.gov/forms/forms-updates/lockbox-filing-location-updates

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18. State Dept. Updates Visa Reciprocity Schedule for Kenya

On May 9, 2022, the Department of State updated the visa reciprocity schedule for Kenya for several nonimmigrant visa categories.

Details:

• Reciprocity: What’s New?, Dept. of State, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/reciprocity-whats-new.html
• Kenya Reciprocity Schedule, https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country/Kenya.html

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19. USCIS Increases Automatic Work Permit Extension Period for Certain Applicants

U.S. Citizenship and Immigration Services (USCIS) announced a temporary final rule, effective May 4, 2022, that increases to up to 540 days the automatic extension period for work authorization and Employment Authorization Documents (EADs) available to certain EAD renewal applicants.

USCIS said the increased extension period “will help avoid gaps in employment for noncitizens with pending EAD renewal applications and stabilize the continuity of operations for U.S. employers.” The rule is expected to affect approximately 87,000 workers who have filed for renewal of their work authorization and whose 180-day automatic extension periods have expired or are about to expire.

USCIS released the following details:

• The TFR, which only applies to those EAD categories currently eligible for an automatic 180-day extension, will temporarily provide up to 360 days of additional automatic extension time (for a total of 540 days) to eligible applicants with a timely filed Form I-765 renewal application pending during the 18-month period after publication of the temporary final rule “while USCIS continues to work through pending caseloads that were exacerbated by the COVID-19 pandemic,” USCIS said. Beginning October 27, 2023, automatic extensions of employment authorization and EAD validity will revert to the up-to-180-day period for eligible applicants who timely file Form I-765 renewal applications.
• Noncitizens with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity, beginning on May 4, 2022 and lasting up to 540 days from the expiration date of their EAD, such that they may resume employment if they are still within the up to 540-day automatic extension period and are otherwise eligible. Noncitizens with a pending renewal application still covered under the 180-day automatic extension will be granted an additional up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD. Noncitizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before October 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.
• The automatic extension generally will end upon notification of a final decision on the renewal application or the end of the up-to-540-day period (i.e., up to 540 days after the expiration date on the applicant’s facially expired EAD), whichever comes earlier.
• Certain noncitizens who are in the United States may file a Form I-765, Application for Employment Authorization, with USCIS to request employment authorization and an EAD. Other noncitizens whose immigration status authorizes them to work in the United States without restrictions may also use Form I-765 to apply for an EAD that shows such authorization.
• Systematic Alien Verification for Entitlements (SAVE) will generally verify employment authorization or this EAD auto-extension as part of initial verification. Additional verification may be required in limited instances such as when the applicant’s data provided by the user agency does not match federal immigration records.

Details:

• USCIS news release, May 3, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-increases-automatic-extension-period-of-work-permits-for-certain-applicants
• “DHS Publishes Rule Temporarily Increasing Automatic Extension Period of Employment Authorization and/or EADs for Certain Individuals” (includes information on documentation benefit applicants will have whose work authorization and/or EADs are extended up to 540 days), USCIS (SAVE), May 4, 2022, https://www.uscis.gov/save/whats-new/dhs-publishes-rule-temporarily-increasing-automatic-extension-period-of-employment-authorization
• “Automatic Employment Authorization Document (EAD) Extension,” USCIS, updated May 4, 2022, https://www.uscis.gov/eadautoextend
• USCIS temporary final rule, 87 Fed. Reg. 26614 (May 4, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-04/pdf/2022-09539.pdf
• “USCIS Issues New Rule on Employment Authorization,” Forbes, https://www.forbes.com/sites/stuartanderson/2022/05/03/uscis-issues-new-rule-on-employment-authorization/?sh=9f27ebd10b13

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20. State Dept. Appeals Four Court Orders on Diversity Visa Adjudications and Processing

The Department of State (DOS) released a statement summarizing four court orders regarding the reservation of numbers for and/or adjudication of DV-2020 and DV-2021 diversity visas, and announcing that it is appealing the orders “because the Department believes the courts misinterpreted the law.”

DOS explained that while the appeal is pending, the courts have granted stays with respect to adjudicating visas from prior years, meaning that “the Department is not required to adjudicate visas from prior years until the appeals court issues its decision.” DOS explained that the courts, however, required the Department to complete the systems modifications necessary to process DV cases from prior years, which DOS said it will do in compliance with the orders.

DOS said it will publish additional public guidance regarding these cases “should it be necessary to do so.”

Details:

• DOS news release, May 3, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-2020-and-2021-updates.html

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21. Case Processing Info Changes Announced

U.S. Citizenship and Immigration Services (USCIS) announced changes to case processing information available online. Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types. Additional changes include:

• Adding drop-down options for form categories to help narrow results to the processing times that are relevant to a case;
• Adding a case inquiry tool where the user can insert their receipt date and get an immediate answer on whether they should contact USCIS with questions about their particular case; if so, benefit requestors will be provided a link to submit a case inquiry online;
• Displaying a single 80^th-percentile processing time (rather than a range) to simplify the information provided and improve the ability of users to estimate how long it is likely to take USCIS to process a benefit request; and
• Revising, streamlining, and adding more content to the processing times webpages, including a new FAQ page.

Details:

• USCIS news release, May 5, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-simplifying-improving-communication-of-case-processing-data

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22. CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders

To reduce wait times, U.S. Customs and Border Protection (CBP) is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.

An I-94 is needed by all visitors except U.S. citizens, returning residents, those with immigrant visas, and most Canadian citizens visiting or in transit. Travelers are issued an I-94 during the admission process at the port of entry.

Details:

• CBP release, Apr. 29, 2022,
• Travel information, CBP, https://www.cbp.gov/travel
• Advisories and wait times, CBP, https://www.cbp.gov/travel/advisories-wait-times

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23. ABIL Global: Schengen Area

This article discusses how to calculate the 90/180-days allowance for non-European Union nationals traveling to Schengen countries, and the new Electronic Entry System.

How to Count Your 90 Days

Non-European Union (EU) visitors can stay in the Schengen countries for maximum of 90 days in any 180-day period, but the calculation is not easy.

The Schengen area currently includes 26 EU countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The scannable QR code below leads to EU Migration and Home Affairs, which includes visa policy information and lists of countries whose citizens must have a visa or are exempt from visa requirements when crossing Schengen external borders.

Third-country nationals (e.g., those who are not citizens of the EU and Iceland, Norway, Liechtenstein, or Switzerland), irrespective of being visa-required or exempt, who intend to travel to the Schengen area for a short trip for business or tourism can stay for a maximum of 90 days in any 180-day period. A few terms and rules apply:

Date of entry: The first day of stay on the territory of the Schengen Member State

Date of exit: The last day of stay in the Schengen Area

This applies only to short-term visitors. Periods of stay authorized under a residence permit or a long-stay visa are not taken into account in the calculation of the duration of stay on the territory of the Member States.

Reference to “any 180-day period” implies the application of a “moving” 180-day reference period, looking backwards at each day of the stay (be it at the entry or at the day of an actual check), into the last 180-day period, to verify if the 90-days/180-day-period requirement continues to be fulfilled.

As noted above, calculation is often not easy. The EU has created an online calculator.

New Entry/Exit System

The new Entry/Exit System (EES), to be operational in 2022, will automatically identify those who overstay their periods of admission. It will collect identity information and the date and place of entry and exit. The EES will apply to non-EU nationals, visa-required and visa-exempt travelers in the Schengen area. It will replace manual stamping of passports.

Details:

• “How to Count Your Schengen 90 Days,” Medium, https://medium.com/studiomazzeschi/how-to-count-your-schengen-90-days-ee96f5d25326
• Entry/Exit System (EES), Migration and Home Affairs, European Commission, https://ec.europa.eu/home-affairs/policies/schengen-borders-and-visa/smart-borders/entry-exit-system_en

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New Publications and Items of Interest

USCIS public engagement on Afghanistan TPS. U.S. Citizenship and Immigration Services (USCIS) will hold a public engagement on temporary protected status for Afghanistan on Thursday, June 16, 2022, from 2-3 p.m. ET. USCIS will provide an overview of the TPS designation and hold a question-and-answer session. To register, visit the USCIS registration page, enter your email address and select “Submit,” then select “Subscriber Preferences,” “Questions,” complete the questions, and select “Submit” again.

Employment authorization document (EAD) extension calculator. U.S. Citizenship and Immigration Services has launched an EAD Automatic Extension Calculator. The calculator will “calculate the new EAD expiration date for eligible employees” affected by an automatic extension for certain renewal applicants from up to 180 days to up to 540 days. https://www.uscis.gov/i-9-central/form-i-9-resources/employment-authorization-document-ead-automatic-extension-calculator

National Visa Center Public Inquiry telephone line suspended. The National Visa Center (NVC) has suspended its public inquiry telephone line. The suspension “will not impede any essential functions of NVC,” the Department of State said. The announcement includes tips for interacting with NVC. https://travel.state.gov/content/travel/en/News/visas-news/nvc-public-inquiry-telephone-line-suspension.html

“Eligible to Naturalize” factsheets. U.S. Citizenship and Immigration Services has released fact sheets providing information on the “eligible to naturalize” population, including select characteristics of people with lawful permanent resident status in several areas. https://www.uscis.gov/news/all-news/fact-sheets (scroll to May 16, 2022)

Readout on backlog reduction. U.S. Citizenship and Immigration Services held a virtual public engagement on May 18, 2022, with nearly 2,000 stakeholders nationwide on the agency’s efforts to reduce backlogs and improve processing times. USCIS updated participants on the agency’s recently announced initiatives to use all available regulatory, policy, and operational tools to reduce backlogs and processing times, including the expansion of premium processing, providing timely access to employment authorization documents, and further reducing the agency’s pending caseload. https://www.uscis.gov/newsroom/news-releases/readout-of-national-public-engagement-on-backlog-reduction

Effects of long visa processing delays on tourism and business travelers. On May 9, 2022, Bloomberg Law published “Tourism Industry Rebound Hampered by Long Visa Processing Delays.” The article notes that international travel to the United States is not expected to return to pre-pandemic levels until 2024 at the earliest, in large part because of long visa wait times in some of the largest markets for international travel to the United States. For example, the article notes, as of May 2022 inbound travelers can expect to wait 702 days in Guadalajara, Mexico; 354 days in Sao Paulo, Brazil; and 643 days in Bogota, Colombia. International visitors “typically make up about half of business and tourist travel to the Miami area,” two-thirds of which is from South American countries. Securing visas through the Department of State “has become a major hurdle for international tourists and business travelers, foreign workers, and immigrants seeking family-based green cards,” the article states. https://news.bloomberglaw.com/daily-labor-report/tourism-industry-rebound-hampered-by-long-visa-processing-delays

Ukrainian-language “Uniting for Ukraine” information. U.S. Citizenship and Immigration Services provided information in Ukrainian on the “Uniting for Ukraine” program, under which the Department of Homeland Security (DHS) will offer certain Ukrainian citizens and their immediate family members recently displaced by Russia’s invasion of Ukraine an opportunity to travel to the United States to seek humanitarian parole for up to two years. Qualifications include passing biometric and biographic vetting, having sufficient financial support in the United States, and meeting other eligibility requirements. https://www.uscis.gov/newsroom/alerts/uscis-nadae-informaciyu-schodo-ednannya-zaradi-ukraini (Ukrainian); https://www.uscis.gov/newsroom/alerts/uscis-provides-information-on-uniting-for-ukraine (English)

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

1. Ronald Klasko, of Klasko Immigration Law Partners, LLP, will speak on the EB-5 panel at the Investment Migration Forum, sponsored by the Investment Migration Council. Global leaders in investment migration from more than 40 countries will be speaking and attending the forum to be held June 6-9, 2022, in Brussels, Belgium. https://investmentmigration.org/forum/

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) announced:

• Partner José Pérez and Attorney Melissa Cantu will present in a Foster webinar, “Basics of Family-Based Immigration,” on Wednesday, June 15, 2022. The webinar will provide HR professionals with a basic understanding of family-based immigration. HR professionals can expect to learn about family-based visas, and issues facing U.S. citizens and lawful permanent residents who wish to reunite with their families. https://attendee.gotowebinar.com/register/4939537719342625549
• Pérez will speak on a panel, “Foreign/Mexican Investments in the Texas Business Markets,” at the U.S.-Mexico Real Estate Investment Summit on Thursday, June 9, 2022. REBS Dallas will bring together executives representing real estate funds, institutional investors, developers, real estate brokers, consultants, attorneys, and academics, as well as government officials and other representatives of the business and financial communities of Texas and Mexico. https://rebs.mx/

IMMpact Immigration Litigation, created by Kuck Baxter Immigration LLC and Siskind Susser PC, announced the first addition to its group of law firms since the joint venture’s founding in 2020: Wasden Bless & Forney. IMMpact, created with the goal of pooling resources to pursue mass immigration-related litigation, has filed 23 federal cases so far, including challenging various Department of State visa bans, a Department of Labor regulation, various cases relating to delays in processing of immigration benefits, and others. Mr. Kuck said, “We are excited and honored to have this amazing team of immigration litigators join the IMMpact Litigation team. Their individual and combined experience in federal court and deep knowledge of government litigation tactics allows IMMpact to offer our clients an unprecedented depth of skill and capacity.” https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:9d777bd7-c05d-3683-bef3-a4e153846658#pageNum=1 (press release); https://www.immpactlitigation.com/ (IMMpact website)

Guest author Prof. Stacy Caplow has authored a new blog post for Cyrus D. Mehta & Partners PLLC, “The Pathos of Patel v. Garland.” http://blog.cyrusmehta.com/2022/05/the-pathos-of-patel-v-garland.html

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) has accepted the position of Editor-in-Chief (EIC) of the American Immigration Lawyers Association’s Law Journal, following the previous EIC’s departure on June 30, 2022. Mr. Mehta’s blog is at http://blog.cyrusmehta.com/.

Mr. Mehta and Jessica Paszco co-authored a new blog post, “H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date Is Current and Green Card is Not Applied for Within One Year.” http://blog.cyrusmehta.com/2022/05/h-1b-extension-beyond-six-years-will-not-be-granted-if-priority-date-is-current-and-green-card-is-not-applied-for-within-one-year.html

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Ethical Considerations When ICE Moves to Dismiss Removal Proceedings Under the Doyle Prosecutorial Discretion Memo,” http://blog.cyrusmehta.com/2022/05/ethical-considerations-when-ice-moves-to-dismiss-removal-proceedings-under-the-doyle-prosecutorial-discretion-memo.html, and , “Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence.” http://blog.cyrusmehta.com/2022/05/helping-afghans-and-ukrainians-can-progress-from-parole-to-temporary-protected-status-to-permanent-residence.html

WR Immigration announced two nominations for Chambers and Partners’ North American Diversity & Inclusion Awards. Bernard Wolfsdorf is nominated for Pro Bono Lawyer of the Year and WR Immigration is nominated for Pro Bono Outstanding Firm. The awards ceremony will be held June 9, 2022, in Los Angeles, California. https://wolfsdorf.com/chambers-diversity-inclusion-awards-north-america-2022/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by law.com in “Immigration Lawyers Welcome Clarity and Lessening of Bias Wrought by Court Notification Statute on Hochul’s Desk.” A measure, passed by the New York legislature and awaiting Gov. Hochul’s signature, is structured so that courts would give standard required language about the risk of immigration consequences resulting from a guilty plea to everyone—the court wouldn’t first find out whether a defendant is a noncitizen. “So there’s no discrimination in that sense,” Mr. Yale-Loehr said. He noted that immigration law and criminal law are complicated, and that advising people about the intersection of them makes it even more complicated. “Many times people erroneously think that it’s only if they plead guilty to a felony crime that they might be deportable, but in many cases under federal immigration law, pleading guilty to a misdemeanor can also make you deportable,” he said

Mr. Yale-Loehr was quoted by Spectrum News in “Lawmakers Call for Investigation Into Office Handling Asylum Cases for New England States.” He explained that some outside factors may have played a part in the Boston U.S. Citizenship and Immigration Service office’s low approval rate. “There are a lot of reasons, [including] high turnover of officers [and] pressure to decide cases quickly … if [officers] see the same kind of case over and over again, you sort of feel like you know that type of case without really probing into the individual facts of the case. … There’s a lot of disparity in all of the USCIS asylum offices and it got worse during the Trump administration. There was pressure from headquarters to make it harder to win approval. So approval rates across the country went down. They just seem to have gone down more in Boston than in some of the other USCIS asylum offices.” https://spectrumnews1.com/ma/worcester/politics/2022/06/01/lawmakers-call-for-investigation-into-office-handling-asylum-cases-for-new-england-states

Mr. Yale-Loehr was quoted by the Washington Examiner in “Biden’s Options Limited on Title 42 COVID-19 Migration Rule After Court Ruling.” Mr. Yale-Loehr said the Biden administration has three options in deciding what to do after a federal district court issued an order barring the administration from terminating its Title 42 policy of barring most people from entering the United States at the U.S.-Mexico border: it could appeal to the U.S. Court of Appeals for the Fifth Circuit, start the rulemaking process and ask for public comment on terminating Title 42, or give up and keep the measure in place. Since the White House has already said it will appeal, that process will play out over the course of several months, leaving Title 42 effectively in place for the foreseeable future. Mr. Yale-Loehr said the decision not to seek an immediate stay may have boiled down to practical reasons. “I suspect the reason is that it is very hard to win an emergency stay,” he said. https://www.washingtonexaminer.com/news/white-house/bidens-options-limited-on-title-42-covid-19-migration-rule-after-court-ruling

Mr. Yale-Loehr was quoted by Univision in “The Four Cases in the Hands of the Supreme Court That Will Impact Hundreds of Thousands of Immigrants.” In one case, he said, “Two lower courts have held that, in certain cases, immigrants have [a] right” to request a bond hearing after six months in detention. “But the conservative majority on the Supreme Court may disagree with those rulings,” he said. The arguments, presented by defense attorneys for immigrants and the U.S. government, will decide whether foreigners who have been detained for more than six months “have the right to a bail hearing to be released,” he noted. In another case, he said, the plaintiff “is arguing that, to avoid a due process violation, he and certain other immigrants should be entitled to a bond hearing after six months in detention. However, in 2021 the Supreme Court ruled 6-3 that immigrants who return to the United States illegally after being deported must be held without bond while they await a second deportation hearing.” Mr. Yale-Loehr further said that “both cases are important, in part due to the large backlog of cases in the immigration courts. More than 1.7 million immigrants have cases pending with the [Executive Office for Immigration Review] (EOIR). It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense.” https://www.univision.com/noticias/inmigracion/estos-son-los-cuatro-casos-de-inmigracion-pendientes-corte-suprema (Spanish with English translation available)

Mr. Yale-Loehr was quoted by Univision in “Supreme Court Ruling Leaves Immigrants With Errors in Their Paperwork on the Brink of Deportation.” Mr. Yale-Loehr said that the Supreme Court’s decision “means that thousands of immigrants each year will no longer be able to go to federal court to correct factual errors by immigration judges. Given how much is at stake in deportation proceedings, Congress should provide funding for attorneys to represent immigrants in all deportation proceedings in the same way that attorneys are automatically provided to everyone charged with a crime.” https://www.univision.com/noticias/inmigracion/fallo-corte-suprema-deja-inmigrantes-al-borde-de-deportacion-las-claves (Spanish, with English translation available)

Mr. Yale-Loehr was quoted by Law360 in “High Court Raises Stakes of Immigration Court Decisions.” He said that noncitizens without legal representation are more likely to be affected by the Supreme Court’s ruling because they don’t have the help of legal professionals trained to watch out for potential errors by immigration adjudicators. He said legal aid programs can help address the disadvantages facing noncitizens who lack access to counsel, and encouraged immigration advocates to push for federal, state, and local governments to fund such programs. “We need to make sure that every immigrant has good representation in immigration court. Given the many errors the immigration bureaucracy makes, many people will be denied their day in court because of this decision,” he said. https://www.law360.com/immigration/articles/1493704/high-court-raises-stakes-of-immigration-court-decisions (registration required)

Mr. Yale-Loehr was quoted by the Associated Press in “Video Spreads False Claims About Immigrants.” Regarding claims that immigrants living in the United States without authorization commit a high number of crimes, he said, “Almost every reputable report that I have seen has found that immigrants commit crimes at a lower rate than native born U.S. citizens.” Mr. Yale-Loehr cited a 2020 study published in Proceedings of the National Academy of Sciences, a peer-reviewed journal. Using data from the Texas Department of Public Safety, the study found that immigrants living in the U.S. without authorization have “substantially lower crime rates than native-born citizens and legal immigrants across a range of felony offenses.” Regarding an estimate of the number of immigrants who could be living in the United States without authorization, Mr. Yale-Loehr said, “Their numbers of 21 million are just wildly off base. They are double what reputable research organizations have found.” He pointed to the Pew Research Center, which estimated that 10.5 million immigrants were living in the U.S. without authorization as of 2017. Regarding claims by conservative activist Candace Owens, citing a 2011 Center for Immigration Studies (CIS) report,  that immigrants living in the United States use public benefits at a high rate and that 80% never go off welfare, Mr. Yale-Loehr noted that a 2002 Brookings Institution report states that use of welfare by legal permanent residents has declined by a faster rate than use of such benefits by citizens. “The CIS report doesn’t distinguish between legal and illegal immigrants,” he noted. “Neither report states that 80% of undocumented immigrants never go off welfare. The bottom line: These two reports fail to support Candace Owens’ claim.” https://apnews.com/article/fact-check-charlie-kirk-candace-owens-immigration-688231079873

Mr. Yale-Loehr was quoted by Time in “Why Judges Are Basically in Charge of U.S. Immigration Policy Now.” He said, “This is a manifestation of our broken immigration system. Today, almost every executive action on immigration is being challenged in the courts.” He also noted that judges having so much power to determine immigration policy also puts the U.S. judicial system in a delicate spot, since federal judges are often wary of being drawn into issues of national sovereignty or of impinging on the executive branch’s authority to conduct foreign policy. But these days, they often have no choice. “Courts are loath to weigh in,” he said. Another reason for the recent explosion of court challenges was the pace at which the Trump administration moved on immigration issues, the article notes. That “unprecedented pace” led to an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Mr. Yale-Loehr said. And now, he said, “Conservative states are suing every chance they get to challenge everything that the Biden administration is doing on immigration.” https://time.com/6172684/judges-us-immigration-policy/

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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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In this issue:

1. DHS, DOL Announce Additional 35,000 H-2B Nonagricultural Visas for Second Half of FY 2022 – The Departments of Homeland Security and Labor announced a forthcoming joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of FY 2022. The visas will be set aside for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

2. USCIS Announces ‘Trio’ of Backlog Relief Actions, Expansion of Premium Processing, Relief for Work Permit Holders – USCIS announced a “trio” of efforts, including setting new agency-wide backlog reduction goals, expanding premium processing, and working to improve timely access to employment authorization documents.

3. USCIS Announces FY 2023 H-1B Cap Season Updates – USCIS released several updates related to the FY 2023 H-1B cap season.

4. USCIS Again Extends Flexibilities for Responding to Certain Agency Requests – In response to the COVID-19 pandemic, USCIS is once again extending certain flexibilities through July 25, 2022, to assist applicants, petitioners, and requestors.

5. DHS Secretary Issues Statement on CDC’s ‘Title 42’ Public Health Order Termination – Effective May 23, 2022, the CDC will terminate its Title 42 public health order requiring the expulsion of unauthorized single adults and family units arriving at land borders to protect against the spread of the virus that causes COVID-19.

6. DHS Extends Public Comment Period for Form I-9 Extension/Revisions – The Department of Homeland Security invites public comments on its proposed extension and revisions to Form I-9, Employment Eligibility Verification, before it expires on October 31, 2022. DHS extended the comment period to May 31, 2022.

7. E-Verify Records Disposal Date Extended to May 6, 2022 – USCIS will dispose of E Verify records that are more than 10 years old, which are those dated on or before December 31, 2011. E-Verify employers have until May 5, 2022, to download case information from the Historic Records Report.

8. CBP Announces Reopening of U.S. NEXUS/FAST Enrollment Centers – The NEXUS and U.S./Canada FAST enrollment centers in the United States will reopen April 19, 2022.

9. ‘X’ Gender Marker Available on U.S. Passports Starting April 11, 2022; State Dept. Updates LGBTQI+ Traveler Advice – Starting April 11, 2022, U.S. citizens will be able to select “X” as their gender marker on their U.S. passport applications.

10. Breaking News: Putin Surprises World by Applying for Asylum in the United States – Mr. Putin applied for asylum on April 1, 2022, based on fear of persecution as a member of a newly defined particular social group.

11. Biden Administration Announces Relief Measures for Ukrainians – President Biden announced that the United States will accept up to 100,000 Ukrainians and other displaced people fleeing the Russian invasion in Ukraine.

12. DHS, DOJ Issue Interim Final Rule to ‘Improve and Expedite’ Asylum Claims Processing for Noncitizens Subject to Expedited Removal – The rule authorizes asylum officers to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening, USCIS noted. Currently, the agency said, such cases are decided only by immigration judges.

13. USCIS Updates Guidance on Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications – USCIS is updating its guidance about two evidentiary criteria relating to immigrants of extraordinary ability and one relating to outstanding professors and researchers “to more closely align with recently issued nonimmigrant guidance pertaining to O-1A nonimmigrants of extraordinary ability.”

14. USCIS Updates Guidance on Employment Authorization Class of Admission Codes for E and L Nonimmigrant Spouses – USCIS announced new Class of Admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment authorized based on their status. Forms I-94 containing these code designations are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security.

15. E-Verify Releases New Case Features – Users can now close a case from the document upload page in E Verify by providing one of several reasons. E Verify also added a requirement to download the Further Action Notice before referring a case. E-Verify said this will ensure that users correctly process Tentative Nonconfirmation cases.

16. DHS to End COVID-19 Temporary Policy for I-9 List B Documents on May 1 – The Department of Homeland Security announced that beginning May 1, 2022, it is ending the COVID-19 temporary policy for List B identity documents. As of that date, employers will no longer be able to accept expired List B documents.

17. USCIS Urges Eligible Individuals to Consider Applying for Adjustment in the E-2 Category Based on April Visa Bulletin Date for Filing for India – U.S. Citizenship and Immigration Services encourages noncitizens who have approved immigrant visa petitions in the EB-2 category chargeable to India and a priority date earlier than September 1, 2014, to consider applying for adjustment of status in April.

18. State Dept. Warns About Upcoming Availability of Employment Third Preference “Other Workers” Numbers – High number use in the employment third preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June.

19. USCIS Prepares to Resume Public Services on June 4 – U.S. Citizenship and Immigration Services announced on March 15, 2022, that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4, 2022.

20. DHS Designates Afghanistan for Temporary Protected Status – The Department of Homeland Security announced the designation of Afghanistan for temporary protected status for 18 months, effective on the publication date of a forthcoming Federal Register notice. Only those who were already residing in the United States as of March 15, 2022, and who meet all other requirements, including undergoing security and background checks, will be eligible.

21. USCIS Issues Asylum-Based EAD Update Following Decision re Rosario Class Action – Those who applied for initial employment authorization documents (EADs) based on a pending asylum application may be eligible to have their EADs processed within 30 days. If certain conditions apply, USCIS said it may consider such applicants Rosario class members.

22. USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses – U.S. Citizenship and Immigration Services is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status.

23. CBP Announces Electronic I-94 Issuance at Land Ports of Entry – For land arrivals, CBP is no longer issuing paper forms to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request if feasible.

24. Attorney General Announces New FOIA Policy at EOIR, Other Agencies – Among other changes, the Department of Justice’s Executive Office for Immigration Review will no longer require individuals to file Freedom of Information Act requests to obtain official copies of their own records of immigration court proceedings.

25. Omnibus Spending Bill Signed; EB-5 Regional Center Program Reauthorized – The Consolidated Appropriations Act, 2022, an omnibus spending bill passed by Congress and signed by President Biden, reauthorizes the EB-5 regional center program for five years and includes some changes.

26. State Dept. Releases Info for Nationals of Ukraine, U.S. Citizens in Ukraine – The Department of State released information on March 11, 2022, for nationals of Ukraine to “further clarify visa options and outline alternatives to visas that Ukrainians may consider.”

27. State Dept. Holds Passport Acceptance Fairs – The Department of State announced that it will hold special passport acceptance fairs across the United States. Most of the events are for first-time applicants and children using Form DS-11 to apply.

28. ABIL Global: United Kingdom – The adjusted right-to-work check process has been extended until September 30, 2022.

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

Download:

ABIL Immigration Insider – April 2022

1. DHS, DOL Announce Additional 35,000 H-2B Nonagricultural Visas for Second Half of FY 2022

On March 31, 2022, the Departments of Homeland Security (DHS) and Labor (DOL) announced a forthcoming joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of fiscal year (FY) 2022. The visas will be set aside for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

The agencies said the supplemental H-2B visa allocation includes 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, Honduras, Guatemala, and El Salvador.

The measure follows an announcement in January by DHS and DOL of the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of FY 2022.

Details:

• DHS news release, Mar. 31, 2022, https://www.uscis.gov/newsroom/all-news/dhs-and-dol-to-supplement-the-h-2b-cap-with-additional-visas-for-second-half-of-fiscal-year-2022

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2. USCIS Announces ‘Trio’ of Backlog Relief Actions, Expansion of Premium Processing, Relief for Work Permit Holders

U.S. Citizenship and Immigration Services (USCIS) announced on March 29, 2022, a “trio” of efforts, including setting new agency-wide backlog reduction goals, expanding premium processing, and working to improve timely access to employment authorization documents (EADs).

Reducing Backlogs

USCIS is establishing new internal goals to guide backlog reduction efforts and case processing. As part of these efforts, USCIS plans to increase capacity, expand staffing, and improve technology by the end of FY 2023. USCIS said it expects that once these measures are in place, “applicants and petitioners will receive decisions on their cases more quickly.”

Expanding Premium Processing

The Department of Homeland Security announced a final rule that codifies premium processing fees and adjudication timeframes. In FY 2022, USCIS intends to begin implementing, through a phased approach, premium processing availability for Forms I-539, I-765, and I-140. USCIS said it “will also adhere to the congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefit requests.”

USCIS plans to begin phased implementation by expanding premium processing eligibility to Form I-140 filers requesting EB-1 immigrant classification as a multinational executive or manager, or EB-2 immigrant classification as a member of a profession with advanced degrees or exceptional ability seeking a national interest waiver.

Under the new rule, premium processing will be available to the following categories:

• I-140 petitions for multinational managers and National Interest Waivers (NIWs). Fee: $2,500 for adjudication within 45 days.
• I-539 applications for F-1, F-2, J-1, J-2, M-1, and M-2 will begin this fiscal year. Premium processing for E-1, E-2, E-3, L-2, H-4, O-3, P-4, or R-2 will not go into effect until FY 2025. Fee: $1,750 for adjudication within 30 days.
• I-765 applications for Optional Practical Training and Js will begin this fiscal year. Premium processing for EADs based on adjustment of status, H-4, or L-2 filings is not available. Fee: $1,500 for adjudication within 30 days.

Extending Work Authorization

USCIS said it continues to make progress toward a temporary final rule to increase the automatic extension period of employment authorization and documentation for certain renewal applicants. USCIS said this will build on progress made in recent months in streamlining many EAD processes, including extending validity periods for certain EADs and providing expedited work authorization renewals for healthcare and childcare workers. USCIS said the goal is to ensure that certain individuals will not lose their work authorization while their applications are pending.

Details:

• USCIS news release, Mar. 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work

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3. USCIS Announces FY 2023 H-1B Cap Season Updates

U.S. Citizenship and Immigration Services (USCIS) released several updates related to the fiscal year (FY) 2023 H-1B cap season:

• USCIS has received enough electronic registrations during the initial registration period to reach the FY 2023 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap). Registrants accounts will now reflect one of the following statuses for each registration: submitted, selected, denied, or invalidated-failed payment.
• FY 2023 H-1B cap petitions may be filed with USCIS starting April 1, 2022, including those petitions eligible for the advanced degree exemption, if based on a valid, selected registration.

Details:

• USCIS FY 2023, H-1B Cap Season Updates, https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-season-updates
• USCIS H-1B Electronic Registration Process page, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
• USCIS H-1B Cap Season page, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season

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4. USCIS Again Extends Flexibilities for Responding to Certain Agency Requests

In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) is once again extending certain flexibilities through July 25, 2022, to assist applicants, petitioners, and requestors. USCIS said this may be the final extension of the flexibilities. The agency will consider a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the issuance date listed on the request or notice is between March 1, 2020, and July 25, 2022, inclusive:

• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Notices of Intent to Deny
• Notices of Intent to Revoke
• Notices of Intent to Rescind
• Notices of Intent to Terminate regional centers
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
• The agency made that decision between November 1, 2021, and July 25, 2022, inclusive.

Details:

• USCIS alert, Mar. 30, 2022, https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-1

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5. DHS Secretary Issues Statement on CDC’s ‘Title 42’ Public Health Order Termination

Department of Homeland Security Secretary Alejandro Mayorkas released a statement on April 1, 2022, in response to the Centers for Disease Control and Prevention’s (CDC) determination that effective May 23, 2022, it will terminate its Title 42 public health order requiring the expulsion of unauthorized single adults and family units arriving at land borders to protect against the spread of the virus that causes COVID-19.

According to reports, a migrant surge is possible once Title 42 is lifted, and misinformation is a possibility. “Title 42 remains in place until May 23 and, until then, DHS will continue to expel single adults and families encountered at the southwest border,” he warned. Once the Title 42 order is no longer in place, he said, DHS will process individuals encountered at the border “pursuant to Title 8, which is the standard procedure we use to place individuals in removal proceedings. Nonetheless, we know that smugglers will spread misinformation to take advantage of vulnerable migrants. Let me be clear: those unable to establish a legal basis to remain in the United States will be removed.”

Secretary Mayorkas said DHS is increasing its capacity to process new arrivals, evaluate asylum requests, and quickly remove those who do not qualify. DHS will increase personnel and resources as needed and has redeployed more than 600 law enforcement officers to the southwest border, he said. The CDC said, “With CDC’s assistance and guidance, DHS has and will implement additional COVID-19 mitigation procedures.” CDC said that the termination “will be implemented on May 23, 2022, to enable DHS time to implement appropriate COVID-19 mitigation protocols, such as scaling up a program to provide COVID-19 vaccinations to migrants and prepare for resumption of regular migration under Title 8.”

Details:

• “Statement by Secretary Mayorkas on CDC’s Title 42 Order Termination,” Apr. 1, 2022, https://www.dhs.gov/news/2022/04/01/statement-secretary-mayorkas-cdcs-title-42-order-termination
• “CDC Public Health Determination and Termination of Title 42 Order,” Media Statement, Apr. 1, 2022, https://www.cdc.gov/media/releases/2022/s0401-title-42.html

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6. DHS Extends Public Comment Period for Form I-9 Extension/Revisions

The Department of Homeland Security (DHS) invites public comments on its proposed extension and revisions to Form I-9, Employment Eligibility Verification, before it expires on October 31, 2022. DHS extended the comment period to May 31, 2022.

Details:

• Federal Register notice, 87 Fed. Reg. 18377 (Mar. 30, 2022), https://www.govinfo.gov/content/pkg/FR-2022-03-30/pdf/2022-06687.pdf

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7. E-Verify Records Disposal Date Extended to May 6, 2022

U.S. Citizenship and Immigration Services (USCIS) announced on April 1, 2022, that it will dispose of E‑Verify records that are more than 10 years old, which are those dated on or before December 31, 2011. E-Verify employers have until May 5, 2022, to download case information from the Historic Records Report, USCIS said.

Employers must record the E‑Verify case verification number on the corresponding Form I-9 Employment Eligibility Verification, or attach a copy of the case details page to the Form I‑9. Employers should retain the Historic Records Report with the Forms I‑9, the agency said.

Details:

• E-Verify announcement, Apr. 1, 2022,
• “E-Verify Records Retention and Disposal,” USCIS Fact Sheet, Jan. 20, 2021, https://www.e-verify.gov/sites/default/files/everify/factsheets/E-VerifyNARAFactSheet.pdf
• “Instructions to Download Historic Records Reports in E-Verify,” USCIS, https://www.e-verify.gov/sites/default/files/everify/infosheets/DownloadNARAReportsinE-Verify.pdf

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8. CBP Announces Reopening of U.S. NEXUS/FAST Enrollment Centers

U.S. Customs and Border Protection (CBP) announced on March 31, 2022, that the NEXUS and U.S./Canada FAST enrollment centers in the United States will reopen April 19, 2022. NEXUS allows expedited clearance for pre-approved, low-risk Canadian travelers upon arrival in the United States, and FAST allows expedited clearance into the United States for pre-approved, low-risk commercial drivers from Mexico and Canada.

Starting April 5, 2022, conditionally approved applicants may schedule interviews at U.S. NEXUS and U.S./Canada FAST enrollment centers in the United States on the Trusted Traveler portal. NEXUS and FAST enrollment centers in Canada remain closed until further notice. Applicants may enter the United States to complete their interview, but must meet all applicable travel requirements, CBP said.

CBP noted that there is a backlog of applications to be processed by a limited number of open enrollment centers.

Details:

• CBP release, Mar. 31, 2022, https://www.cbp.gov/newsroom/national-media-release/cbp-announces-reopening-us-nexusfast-enrollment-centers
• Trusted Traveler portal, https://ttp.dhs.gov/
• “Fact Sheet: Guidance for Travelers to Enter the U.S. at Land Ports of Entry and Ferry Terminals,” Dept. of Homeland Security, https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals

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9. ‘X’ Gender Marker Available on U.S. Passports Starting April 11, 2022; State Dept. Updates LGBTQI+ Traveler Advice

Starting April 11, 2022, U.S. citizens will be able to select “X” as their gender marker on their U.S. passport applications. The option will become available for other forms of documentation next year, Secretary of State Antony Blinken said in a statement released March 31, 2022.

Secretary Blinken said the Department of State (DOS) “is setting a precedent as the first federal government agency to offer the X gender marker on an identity document.” In addition to male and female, the third gender marker is intended for “nonbinary, intersex, and gender nonconforming individuals”—”unspecified or another gender identity,” he said.

DOS has also updated its advice for LGBTQI+ travelers.

Details:

• Dept. of State release, Mar. 31, 2022, https://www.state.gov/x-gender-marker-available-on-u-s-passports-starting-april-11/
• Dept. of State advice for LGBTQI+ travelers, https://travel.state.gov/content/travel/en/international-travel/before-you-go/travelers-with-special-considerations/lgbtqi.html

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10. Breaking News: Putin Surprises World by Applying for Asylum in the United States

In a stunning development after reports that Russian President Vladimir Putin was “self-isolating” with little communication in recent days, he surfaced at the U.S.-Mexico border and announced on April 1, 2022, that he has applied for asylum in the United States.

In a wide-ranging “60 Minutes” interview, Mr. Putin said:

People may be surprised to hear news. But when people say I am liar, they are not kidding. Was lying for years about my hatred of West, and especially of United States. Is all gaslighting. Really I love you guys and am jealous. I want America to be my forever home. My bad reputation bugs me. I tire of sneering and smirking and poisoning my way through life. I suffer from existential dread. I live in prison of my own making. My dead eyes reveal my despair. My advisers all hate me. I ask you: Do I look happy? Incident in Ukraine is blown out of proportion. Is all big misunderstanding, but meanwhile I’m not safe. My prospects in Russia are dim. So I now apply for asylum in USA, surprise! Your worst nightmare now begs for your mercy!

Reaction was swift. President Biden, seeming to speak for many world leaders, said, “I am gobsmacked. No, I mean it. No joke, folks!” A European Union spokesperson said, “Well, thank goodness all of that unpleasantness is finally over! Pass the moscato.” When asked, the U.S. Department of Justice would only say that the Attorney General is handling Mr. Putin’s case “with rubber gloves.” In the unlikely event that Mr. Putin is granted U.S. asylum, it is unclear where the unpopular tyrant would be able to live. Rumors are that Madame Tussauds Wax Museum has an opening for a despised mannequin.

Mr. Putin has applied for asylum based on fear of persecution as a member of a newly defined particular social group, “dictators in imminent danger of being toppled in a situation of their own making due to escalating insane, brutal, murderous, and repressive behavior with little or no attention paid to logistics.” Dr. Hedwig Bierhals, a professor of history and an expert on dictatorial downfalls at the University of Snicketshire, said Mr. Putin’s asylum claim was unique and unprecedented. “It’ll be an interesting one to watch,” she told the Daily Blabber. “We’ll see if he can make a case for it. It’s historic, regardless of the outcome. Perhaps Kim Jong-un will be next.”

Mr. Putin will be representing himself. According to reports, many attorneys who were approached to represent him scattered like roaches in sunlight. One attorney, who wishes to remain anonymous, said from his undisclosed location, “I wouldn’t defend Mr. Putin’s borscht, let alone represent him in an asylum case.” Responding to rumors that Rudy Giuliani was being considered, a spokesperson said he was out of town kissing Mr. Putin’s assets and was unavailable for comment.

Mr. Putin had a final remark: “See how I tell you West is gullible and weak. This whole thing is one more gaslight. In reality, I hold you all in utter contempt. You are as insects and tiniest bugs I will crush under my imperial feet. Asylum, I spit on you! Make Russia Great Again! And one more thing: How do you say it? ‘Happy Fools of the April Day!’ ”

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11. Biden Administration Announces Relief Measures for Ukrainians

On March 24, 2022, President Biden announced that the United States will accept up to 100,000 Ukrainians and other displaced people fleeing the Russian invasion in Ukraine, in addition to providing an additional $1 billion in humanitarian aid. “This is not something that Poland or Romania or Germany should carry on their own. This is an international responsibility,” he said.

U.S. officials acknowledged that many displaced Ukrainians will want to remain in Europe, closer to their homes and family members, but some may need to find refuge elsewhere. A Biden administration official told reporters traveling with President Biden on March 24, 2022, that admissions of Ukrainians into the United States will be accomplished through a combination of refugee admissions, parole, and immigrant and nonimmigrant visas, with a focus on Ukrainians with family members in the United States. The official said that the United States will prioritize vulnerable people, including those with medical needs, journalists, dissidents, and LGBTQI.

The new measures are in addition to temporary protected status (TPS), for which Ukraine has been designated for 18 months. Individuals eligible for TPS under the Ukraine designation must have continuously resided in the United States since March 1, 2022. Up to an estimated 75,000 Ukrainians in the United States could be eligible for TPS.

According to reports, the Biden administration still struggles with processing issues, including for tens of thousands of Afghans evacuated following the U.S. military withdrawal from Afghanistan, along with other immigration and refugee-related backlogs. Although about 75,000 Afghans have entered the United States via humanitarian parole, many others wait overseas in U.S.-run centers for their cases to be processed.

Details:

• “The U.S. Will Take In Up to 100,000 Ukrainian Refugees Fleeing the War,” National Public Radio, Mar. 24, 2022, https://www.npr.org/2022/03/24/1088506487/us-ukraine-refugees
• “United States Will Welcome Up to 100,000 Ukrainian Refugees,” New York Times, Mar. 24, 2022, https://www.nytimes.com/2022/03/24/us/ukrainian-refugees-biden.html
• Remarks by President Biden, Mar. 24, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/24/remarks-by-president-biden-in-press-conference-7/
• USCIS news release (Ukrainian TPS), Mar. 3, 2022, https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-designates-ukraine-for-temporary-protected-status-for-18-months

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12. DHS, DOJ Issue Interim Final Rule to ‘Improve and Expedite’ Asylum Claims Processing for Noncitizens Subject to Expedited Removal

On March 24, 2022, the Departments of Homeland Security and Justice announced an interim final rule to “improve and expedite processing of asylum claims made by noncitizens subject to expedited removal, ensuring that those who are eligible for asylum are granted relief quickly, and those who are not are promptly removed.”

The rule authorizes asylum officers to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening, USCIS noted. Currently, the agency said, such cases are decided only by immigration judges.

Due to existing court backlogs, USCIS said, the process for hearing and deciding these asylum cases takes several years on average. “When fully implemented, the reforms and new efficiencies will shorten the process to several months for most asylum applicants covered by this rule,” the agency said.

Advocates expressed concerns that asylum seekers whose cases are denied could be hindered in obtaining legal representation. Jennifer Ibañez Whitlock, an immigration attorney and policy counsel for the American Immigration Lawyers Association (AILA), said, “If somebody is not approved in the first instance, they’re going to be required to go through a pretty fast process to appeal. I firmly believe it’s going to affect people’s ability to get a lawyer.” In a statement released on March 24, 2022, AILA said that while the rule includes some positive changes, the organization is “gravely concerned about the tight deadlines and rapid scheduling of hearings which will curtail due process and interfere with the ability to obtain legal representation. Missing from the announcement is any reference to legal orientation, funded legal representation, or even basic know-your-rights presentations for individuals placed through these hearings or language access plans.”

The interim final rule modifies a notice of proposed rulemaking (NPRM) in response to public comments received following the NPRM issued by the two departments in August 2021. The rule will take effect 60 days after publication in the Federal Register, which is expected to occur on March 29, 2022. The departments said they encourage further public comment on the rule during the 60-day comment period.

Details:

• “DHS and DOJ Issue Rule to Efficiently and Fairly Process Asylum Claims,” USCIS, Mar. 24, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-doj-issue-rule-to-efficiently-and-fairly-process-asylum-claims
• “New Process for Asylum Cases at the Border Unveiled by Biden Administration,” Louisiana Illuminator, Mar. 24, 2022, https://lailluminator.com/2022/03/24/new-process-for-asylum-cases-at-the-border-unveiled-by-biden-administration/
• “Asylum Changes from the Biden Administration Will Not Ensure Due Process as Required by U.S. Asylum Law,” AILA, Mar. 24, 2022, https://www.aila.org/advo-media/press-releases/2022/asylum-changes-from-the-biden-administration
• “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers” (advance copy), Dept. of Homeland Security, https://public-inspection.federalregister.gov/2022-06148.pdf

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13. USCIS Updates Guidance on Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications

U.S. Citizenship and Immigration Services (USCIS) announced on March 23, 2022, that it has updated its policy manual, effective immediately, to align existing guidance on certain first preference immigrants with a recent manual update relating to nonimmigrants of extraordinary ability. Specifically, USCIS is updating its guidance about two evidentiary criteria relating to immigrants of extraordinary ability and one relating to outstanding professors and researchers “to more closely align with recently issued nonimmigrant guidance pertaining to O-1A nonimmigrants of extraordinary ability,” the agency said.

The updated guidance clarifies that:

• For the extraordinary ability and outstanding professor or researcher classifications, “published material” about the person (or the person’s work in the case of an outstanding professor or researcher) in professional or major trade publications or other major media need not be a printed article; rather, a petitioner may submit more varied forms of evidence including a transcript of audio or video coverage.
• In the extraordinary ability classification, a person may satisfy the leading or critical role criterion through a qualifying role for a distinguished department or division in addition to an entire organization or establishment.

Details:

• “Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications,” USCIS Policy Alert, Mar. 23, 2022, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220323-ExtraordinaryAbility.pdf

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14. USCIS Updates Guidance on Employment Authorization Class of Admission Codes for E and L Nonimmigrant Spouses

Following an announcement by U.S. Citizenship and Immigration Services (USCIS) on March 18, 2022, that it is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status, the agency announced on March 24, 2022, that as of January 30, 2022, USCIS and U.S. Customs and Border Protection began issuing Form I-94, Arrival-Departure records, with new Class of Admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment authorized based on their status.

USCIS said the COA designations for E nonimmigrant spouses are E-1S, E-2S, E-3S, and L-2S for nonimmigrant L spouses. Forms I-94 containing these code designations are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security, USCIS said.

Details:

• “Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses,” USCIS, Mar. 24, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/documentation-of-employment-authorization-for-certain-e-and-l-nonimmigrant-dependent-spouses
• USCIS policy alert, Mar. 18, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

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15. E-Verify Releases New Case Features

E-Verify announced in an email sent March 21, 2022, that users can now close a case from the document upload page in E‑Verify by providing one of the following reasons:

• The information entered was not correct;
• The employee voluntarily quit working for the employer; or
• Other (full explanation required in text box).

E‑Verify also added a requirement to download the Further Action Notice before referring a case. E-Verify said this will ensure that users correctly process Tentative Nonconfirmation cases.

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16. DHS to End COVID-19 Temporary Policy for I-9 List B Documents on May 1

The Department of Homeland Security (DHS) announced that beginning May 1, 2022, it is ending the COVID-19 temporary policy for List B identity documents. As of that date, employers will no longer be able to accept expired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must update their I-9 employment authorization verification forms by July 31, 2022. DHS provided the following table with details:

Details:

• E-Verify notice, Mar. 17, 2022, https://www.e-verify.gov/about-e-verify/whats-new/dhs-to-end-covid-19-temporary-policy-for-expired-list-b-identity-documents

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17. USCIS Urges Eligible Individuals to Consider Applying for Adjustment in the E-2 Category Based on April Visa Bulletin Date for Filing for India

The Department of State’s Visa Bulletin for April 2022 advances the date for filing applications for an immigrant visa or adjustment of status in the EB-2 category for India from September 1, 2013, to September 1, 2014. U.S. Citizenship and Immigration Services (USCIS) encourages noncitizens who have approved immigrant visa petitions in the EB-2 category chargeable to India and a priority date earlier than September 1, 2014, to consider applying for adjustment of status in April.

USCIS noted that applicants should include Form I-693, Report of Medical Examination and Vaccination Record, with Form I-485, Application to Register Permanent Residence or Adjust Status, to save time. Concurrently filing these two forms is not required, “but filing both forms at the same time may eliminate the need for USCIS to issue a Request for Evidence to obtain your Form I-693. This may also help avoid adjudication delays if we decide that you do not need to be interviewed,” USCIS said.

USCIS continues to encourage eligible applicants to consider requesting to transfer the underlying basis of their pending adjustment of status applications in the EB-3 category to the EB-1 or EB-2 category if they meet the following criteria: a visa is unavailable to them in the
EB-3 category; they have a pending or approved I-140, Immigrant Petition for Alien Workers; and a visa is available in the EB-1 or EB-2 category.

Details:

• USCIS alert, Mar. 17, 2022, https://www.uscis.gov/newsroom/alerts/uscis-urges-eligible-individuals-to-consider-applying-for-adjustment-of-status-in-the-eb-2-category
• Visa Bulletin for April 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-april-2022.html

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18. State Dept. Warns About Upcoming Availability of Employment Third Preference “Other Workers” Numbers

The Department of State (DOS) notes in its Visa Bulletin for April 2022 that high number use in the employment third preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June to hold number use within the maximum allowed under the fiscal year 2022 annual limit. “This situation will be continually monitored, and any necessary adjustments will be made accordingly,” DOS said.

Details:

• Visa Bulletin for April 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-april-2022.html

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19. USCIS Prepares to Resume Public Services on June 4

U.S. Citizenship and Immigration Services (USCIS) announced on March 15, 2022, that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4, 2022. USCIS said it is following the Centers for Disease Control and Prevention’s guidelines.

While certain offices are temporarily closed, USCIS continues to provide limited emergency in-person services. As services begin to reopen, offices will reduce the number of appointments and interviews “to ensure social distancing, allow time for cleaning and reduce waiting room occupancy.” USCIS said, “If you are feeling sick, please do not go to your appointment. Follow the instructions on your appointment notice to reschedule your appointment for when you are healthy. There is no penalty for rescheduling your appointment if you are sick.”

Details:

• USCIS alert, Mar. 15, 2022, https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4

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20. DHS Designates Afghanistan for Temporary Protected Status

On March 16, 2022, the Department of Homeland Security (DHS) announced the designation of Afghanistan for temporary protected status (TPS) for 18 months, effective on the publication date of a forthcoming Federal Register notice. Only those who were already residing in the United States as of March 15, 2022, and who meet all other requirements, including undergoing security and background checks, will be eligible for TPS. Under the designation, TPS will also provide “additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years,” DHS Secretary Alejandro Mayorkas said.

Through Operation Allies Welcome, DHS said, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis, for humanitarian reasons, for a period of two years and received work authorization. These individuals may also be eligible for TPS, the agency noted.

Details:

• DHS press release, Mar. 16, 2022, https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status

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21. USCIS Issues Asylum-Based EAD Update Following Decision re Rosario Class Action

U.S. Citizenship and Immigration Services (USCIS) announced on March 17, 2022, that those who applied for initial employment authorization documents (EADs) based on a pending asylum application may be eligible to have their EADs processed within 30 days, based on a February 7, 2022, court decision in Asylumworks v. Mayorkas. If certain conditions apply, USCIS said it may consider such applicants Rosario class members (referring to Rosario v. USCIS, 365 F. Supp. 3d 1156 (W.D. Wash. 2018)).

Details:

• USCIS notice, https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements/rosario-class-action

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22. USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses

U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2022, that it is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status. USCIS noted:

• On November 12, 2021, USCIS issued a policy announcement to clarify that it would consider E and L spouses to be employment-authorized based on their valid E or L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children.
• As of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form
  I-9.
• An E or L spouse age 21 or over who has an unexpired Form I-94 that USCIS issued before January 30, 2022, will receive a notice from USCIS beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization. An E or L spouse who is under 21, or has not received the notice by April 30, can email
  [email protected] to request a notice.
• USCIS will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their Form I-94 from CBP should visit cbp.gov.

Details:

• USCIS alert, Mar. 18, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

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23. CBP Announces Electronic I-94 Issuance at Land Ports of Entry

U.S. Customs and Border Protection (CBP) is now issuing the Form I-94 (Arrival/Departure Record) electronically at land ports of entry. The Form I-94 documents nonimmigrants’ status in the United States, the approved length of stay, and departure information.

CBP has automated the Form I-94 process for most nonimmigrants arriving by air and sea. However, CBP previously issued paper Form I-94s to nonimmigrants arriving by land. For land arrivals, CBP is no longer issuing paper forms to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request if feasible, CBP said, noting that nonimmigrants can access the Form I-94 online or via mobile application.

Details:

• CBP notice, 87 Fed. Reg. 15446 (Mar. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05758.pdf

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24. Attorney General Announces New FOIA Policy at EOIR, Other Agencies

As part of efforts to strengthen public access to government documents, Attorney General Merrick Garland announced in a memorandum that the Department of Justice’s Executive Office for Immigration Review (EOIR) will no longer require individuals to file Freedom of Information Act (FOIA) requests to obtain official copies of their own records of immigration court proceedings.

Attorney General Garland said he encourages all agencies “to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests.” In addition, he said that records should be posted online “quickly and systematically, agency FOIA websites should be easily navigable, and records should be presented in the most useful, searchable, and open formats possible.” The memo also calls for efficiency and timeliness in responding to FOIA requests “in a spirit of cooperation,” and calls on agency heads to review backlogs and provide training on FOIA. In general, the memo notes nine exemptions from fulfilling a FOIA request (e.g., national security, personal privacy, privileged records, law enforcement interests, and others) but notes that the burden is on the agency to sustain a decision to withhold records, and that agencies may not withhold information “based merely on speculative or abstract fears or fears of embarrassment.”

The memo notes that FOIA.gov continues to serve as the federal government’s central website for FOIA administration.

Details:

• “Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency,” Dept. of Justice, Mar. 15, 2022, https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-issues-new-foia-guidelines-favor-disclosure-and

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25. Omnibus Spending Bill Signed; EB-5 Regional Center Program Reauthorized

The Consolidated Appropriations Act, 2022, an omnibus spending bill passed by Congress and signed by President Biden, reauthorizes the EB-5 regional center program for five years, among other things. The bill includes some changes to the program. Selected highlights are below:

• The EB-5 regional center program is reauthorized until September 30, 2027.
  • For targeted employment areas (TEAs) or infrastructure projects, the investment will increase to $800,000. For other projects, the required investment is $1,050,000. Existing investors’ petitions will be grandfathered under existing rules. TEA letters are valid for two years.
  • As long as an EB-5 petition is filed by September 30, 2026, U.S. Citizenship and Immigration Services (USCIS) must continue to process it even if the program lapses in the future.
  • Immigrant investor petitions can include concurrent adjustment of status filings.
  • Projects can be changed if a regional center or new commercial enterprise is terminated.
  • USCIS will audit regional centers at least every five years.
  • Third-party agent fees and involvement must be disclosed.

The bill also reauthorizes the Violence Against Women Act. It does not include visa recapture provisions.

Details:

• “Investor Immigrants Greet Imminent Revival of the EB-5 Program,” Forbes, Mar. 9, 2022, https://www.forbes.com/sites/andyjsemotiuk/2022/03/09/investor-immigrants-greet-imminent-revival-of-the-eb-5-program/?sh=7223bbff7436
• Consolidated Appropriations Act, 2022, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/2471?r=7&s=1
• “Violence Against Women Act Renewed as Part of Omnibus Spending Package,” The Hill, Mar. 9, 2022, https://thehill.com/policy/finance/597473-violence-against-women-act-renewed-as-part-of-omnibus-spending-package
• “Green Card Backlog Fix Dropped From Lawmakers’ Budget Deal,” Bloomberg Government, Mar. 9, 2022, https://about.bgov.com/news/green-card-backlog-fix-in-doubt-as-lawmakers-prep-spending-deal/
• “Biden Signs Spending Bill That Includes $13.6 Billion in Ukraine Aid,” CBS News, Mar. 11, 2022, https://www.cbsnews.com/news/ukraine-aid-biden-signs-omnibus-bill/

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26. State Dept. Releases Info for Nationals of Ukraine, U.S. Citizens in Ukraine

The Department of State (DOS) released information on March 11, 2022, for nationals of Ukraine to “further clarify visa options and outline alternatives to visas that Ukrainians may consider.” DOS noted that “a visa is not a viable way to achieve refugee resettlement in the United States.” DOS also recently released information for U.S. citizens in Ukraine. Highlights are below:

• Among other things, certain persons from Ukraine can travel to the United States without a pre-departure COVID-19 test until April 1, 2022, under a national interest exception.
• Humanitarian parole allows a person who may be inadmissible or otherwise ineligible for admission to be in the United States temporarily for urgent humanitarian reasons or significant public benefit. “It is not meant to replace a visa process,” DOS said. Those wishing to apply should contact USCIS.
• Almost all refugee cases in countries abroad are processed by local authorities or the United Nations Refugee Agency (UNHCR). “Ukrainians should not attempt to apply for visas in order to travel to the United States as refugees. Instead, they should contact local authorities or UNHCR for refugee processing,” DOS said. USAID also has information for Ukrainian refugees.
• DOS said that the International Organization for Migration (IOM)’s Resettlement Support Center (RSC) Eurasia is continuing limited operations from Kyiv and from the sub-office in Chisinau, Moldova. At present, RSC Eurasia is not conducting any in-person activities or scheduling any departures from Kyiv. The sub-office in Chisinau can arrange departures for approved Ukrainian Lautenberg applicants who have completed all U.S. Refugee Admissions Program (USRAP) processing requirements and are physically outside of Ukraine, DOS said.
• 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. An online form is at https://cacms.state.gov/s/crisis-intake

Details:

• “Information for Nationals of Ukraine,” Dept. of State, Mar. 11, 2022, https://travel.state.gov/content/travel/en/News/visas-news/information-for-nationals-of-Ukraine.html
• “Information for U.S. Citizens in Ukraine,” which includes border-crossing advice,

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27. State Dept. Holds Passport Acceptance Fairs

The Department of State (DOS) announced on March 9, 2022, that it will hold special passport acceptance fairs across the United States. Most of the events are for first-time applicants and children using Form DS-11 to apply. Those eligible for renewal should renew by mail, DOS said.

Those applying for routine service can expect to receive a passport in 8 to 11 weeks, DOS said. Those who need their passports in the next 5 to 7 weeks can pay an additional $60 fee to expedite processing. Acceptance facilities do not offer appointments for urgent travel in less than 5 weeks.

The March fairs were held in various locations in California, Georgia, Florida, New Jersey, and Texas. The April fairs will be held in several locations in California. DOS said that new events are added weekly.

Details:

• “Special Passport Acceptance Fairs,” Dept. of State, Mar. 9, 2022, https://travel.state.gov/content/travel/en/News/passports/special-passport-acceptance-fairs.html

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28. ABIL Global: United Kingdom

The adjusted right-to-work check process has been extended until September 30, 2022.

The COVID-19 pandemic-related video call temporary adjusted right-to-work check process was scheduled to end on April 5, 2022. However, in a welcome development, it has been extended until September 30, 2022. This means that employers can continue to use the adjusted process to check copies of right-to-work documents over a video call.

The extension is mainly to give employers more time to become comfortable with the new digital Identification Document Validation Technology (IDVT) checking process for British and Irish citizens due to launch on April 6, 2022. This means that employers who do not wish to start using the new IDVT process now will benefit longer from the adjusted process for checking British and Irish citizen employees. Beginning October 1, 2022, if they wish, employers will still be able to check original documents from British and Irish citizens without using the IDVT.

Beginning April 6, 2022, employers must perform an online check if the person has a biometric residence permit. It will not be possible to carry out an original document (manual) check or an adjusted check (over video) if the person has a biometric residence permit.

Details:

• Right-to-Work Checks: What Employers Need to Know, Kingsley-Napley, https://www.kingsleynapley.co.uk/services/department/immigration/slp/right-to-work-checks
• Right-to-Work Checks: An Employer’s Guide, UK Home Office, https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

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New Publications and Items of Interest

USCIS fact sheet on efforts to assist Ukrainian nationals. USCIS has released a fact sheet, “DHS Efforts to Assist Ukrainian Nationals.” The fact sheet includes information on legal pathways for eligible Ukrainians, temporary protected status, asylum, the U.S. Refugee Admissions Program, humanitarian parole, and special situations and expedited processing

OFLC presentation materials. The Department of Labor’s Office of Foreign Labor Certification hosted webinars in March for stakeholders in the CW-1 Temporary Certification program and for stakeholders interested in H-2B prevailing wages and surveys. Webinar recordings and presentation materials are available as indicated below:

• March 22, 2022: CW-1 Common Issues and Filing Tips
  See “Webinar” on the CW-1 Program page at https://www.dol.gov/agencies/eta/foreign-labor/programs/cw-1
• March 23, 2022: H-2B Prevailing Wage Determination General Filing Tips and Survey 101 for Surveyors
  See “Webinar” on the Prevailing Wage Information and Resources page at https://www.dol.gov/agencies/eta/foreign-labor/wages

Resources for assisting Afghan clients. The American Immigration Lawyers Association’s webpage, “Find Resources for Assisting Afghan Clients,” provides a list of resources and links to information related to relief for Afghans, such as temporary protected status, asylum and refugee status, special immigrant visas, diversity visas, the proposed Afghan Adjustment Act, and employment authorization documents, along with practice information for immigration attorneys. https://www.aila.org/advo-media/issues/all/resources-assisting-afghan-clients

E-Verify will no longer support Internet Explorer 11. E-Verify announced that it will no longer support the Internet Explorer 11 web browser as of April 30, 2022. Users can access E-Verify using Apple Safari, Google Chrome, Microsoft Edge, and Mozilla Firefox. https://www.e-verify.gov/about-e-verify/whats-new

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, published a new blog post: “FAQs for Temporary Protected Status (TPS) for Ukraine.”

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) announced:

• Foster partners Avalyn Langemeier, Layla Panjwani, and Sandra Dorsthorst, and guest speaker Cindy Ellis, program specialist at the Texas Primary Care Office, presented for a Foster webinar, “Immigration Options for J-1s, Physicians & Researchers,” on March 23, 2022. The webinar covered how J-1 exchange visitors and foreign national residents, physicians, and researchers can navigate the various immigration options available to them. https://attendee.gotowebinar.com/register/8568147091005058827
• Charles Foster spoke on a panel, “Locally and Nationally: Where We Have Been, Where Are We Today?,” at the Moving Forward: Challenging Racism Conference at the Holocaust Museum Houston on February 26, 2022.
• Foster gave opening remarks as Honorary Chair of the 2022 Born Global Summit at the University of Houston-Downtown Auditorium and online at the Tech Rodeo platform on March 4, 2022.
• Foster spoke on immigration policy at a luncheon for the Bay Area Rotary Club on March 7, 2022.
• Foster partner Oxana Bowman and attorney Diana Dominguez discussed immigration strategies and planning for online businesses in a webinar, “Immigration Planning and Strategies with Foster,” hosted by the Texas French American Chamber of Commerce on March 9, 2022.

Cyrus D. Mehta & Partners PLLC, has published several new blog posts: “Immigration Relief for Ukrainian Refugees: What the United States Is Currently Offering,” “Using U.S. Immigration Law to Undermine Putin,” “Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status,” “USCIS Contact Center is More a Source of Frustration Than Assistance,” “In Addition to Granting TPS to Ukrainians, the U.S. Must Do More to Help Ukrainians and Others Outside the U.S. Who Are in Trouble.” http://blog.cyrusmehta.com/

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) authored a new blog post: “In Addition to Granting TPS, the US Must Do More to Help Ukrainians and Others Outside the US Who Are In Trouble.” http://blog.cyrusmehta.com/2022/03/dhs-designates-ukraine-for-temporary-protected-status-immigration-help-in-special-situations-available-on-case-by-case-basis.html

Mr. Mehta, Kaitlyn Box, and Jessica Paszko authored a new blog post: “USCIS Contact Center is More a Source of Frustration Than Assistance.” http://blog.cyrusmehta.com/2022/03/uscis-contact-center-is-more-a-source-of-frustration-than-assistance.html

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog post: “Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status.”

Wolfsdorf Rosenthal LLP has published several new blog posts: “My Immigration Story With Partner Vivian Zhu: Courageous Moves,” “WR Immigration Expands Its Global and Southern California Practices, Announces WRapid Global,” “April 2022 Visa Bulletin Update,” Afghanistan: Tips and Resources for HR Professionals, Employees and Others,” “Ukraine: Ways You Can Help,” “Ukraine: News Updates,” “Ukrainian Resource Page.” https://wolfsdorf.com/news-and-resources/

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by Forbes in “USCIS Issues Immigration Rule to Expand Premium Processing.” She said, “While the stakeholder community is grateful for the relatively quick expansion of premium processing to additional I-140 categories, the delayed implementation for Forms I-539 and I-765 is disappointing. Since, generally speaking, I-140 filers already have status and work permission while they wait for their applications to be adjudicated, the individuals most impacted by the continued delays are those who cannot work until the I-539 (application to change/extend status) and I-765 (application for employment authorization) are adjudicated.” https://www.forbes.com/sites/stuartanderson/2022/03/30/uscis-issues-immigration-rule-to-expand-premium-processing/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Law360 in “Pandemic Order Speeding Migrant Removals to End in May.” The article notes that opposition to the Biden administration’s ending of the two-year-old “Title 42” policy allowing the quick expulsion of migrants at U.S. land borders for pandemic-related reasons could lead to lawsuits. “If the lawsuits are successful, Title 42 may continue for some time,” Mr. Yale-Loehr said. https://www.law360.com/health/articles/1480088/pandemic-order-speeding-migrant-removals-to-end-in-may (registration required)

Mr. Yale-Loehr moderated a continuing legal education webinar, “Navigating Trauma: Tips for Attorneys and Their Clients,” on March 30, 2022. The presenters, two Cornell medical school professors (JoAnn Difede and Michelle Pelcovitz) discussed how to deal with trauma in sensitive cases like asylum, domestic violence, and those involving violent crimes. They also discussed how to deal with traumatized clients and attorneys’ own vicarious trauma. The webinar was sponsored by the New York State Bar Association. https://nysba.org/events/navigating-trauma-tips-for-attorneys-and-their-clients/

Mr. Yale-Loehr was quoted by the New York Times in “Facing Demand for Labor, U.S. to Provide 35,000 More Seasonal Worker Visas.” He said, “Even with these additional visas, there’s not nearly enough visas for all of the types of workers that employers want to hire on the H-2B program. But in the short term, at least, this is something the administration can do to help immediately.” https://www.nytimes.com/2022/03/31/us/politics/us-seasonal-worker-visas.html

Mr. Yale-Loehr was quoted by Bloomberg Law in “Narrow Immigration Fixes Sought by Employers, Religious Groups.” He cautioned that passing any immigration bill will likely be a long fight, even with commitments to work across the aisle: “Congress will enact immigration reform only through bipartisan efforts. In that regard, the Alliance for a New Immigration Consensus is a good first step. However, I fear that nothing will happen in Congress this year, both because of the midterm elections and the general controversy about immigration in America.” https://news.bloomberglaw.com/daily-labor-report/narrow-immigration-fixes-sought-by-employers-religious-groups

Mr. Yale-Loehr was quoted by the Cornell Chronicle in “Migrations Project Helps Refugees Claim Health Care Rights.” Commenting on refugees in the United States, he said, “Many of them believe—wrongly—that if they take any public benefits they will become deportable or not be able to get a green card. They lack clear and accurate information about what public benefits they are entitled to in the United States.” https://news.cornell.edu/stories/2022/03/migrations-project-helps-refugees-claim-health-care-rights

Mr. Yale-Loehr was quoted by Voice of America in “Immigration Experts Contrast U.S. Support for Ukrainian, Afghan Refugees.” He agreed that the United States was quick to announce temporary protected status for Ukrainian refugees but noted that both Ukrainians and Afghans have to go through the normal immigration system. “And we don’t have a good system for allowing people to come to the United States quickly,” he said, noting that for Afghan refugees, the humanitarian parole process has been overwhelmed by more than 40,000 applicants, many of whom have been waiting for six months for a decision on their cases. “I don’t see how the administration is going to be able to speed up processing with the expected flood of humanitarian parole applications from Ukrainians. And if the administration does speed it up for Ukrainians, I think there will be legitimate complaints about why they were able to do it for Ukrainians so much more quickly than for Afghans and people from other countries,” he said. https://www.voanews.com/a/immigration-experts-contrast-us-support-for-ukrainian-afghan-refugees/6502093.html

Mr. Yale-Loehr was quoted by the Wall Street Journal in “Muslim U.S. Citizens Questioned About Faith at Border, ACLU Lawsuit Alleges.” The question of whether a person is still fully protected by the First Amendment at the U.S. border has rarely been addressed by courts, he noted: “U.S. citizens have constitutional rights when they enter the United States. But the government also has an interest in protecting the country from terrorists. Courts need to weigh these competing interests.” https://www.wsj.com/articles/muslim-u-s-citizens-questioned-about-faith-at-border-aclu-lawsuit-alleges-11648130400?mod=business_minor_pos4

Mr. Yale-Loehr was quoted by Univision in “Government Issues a New Asylum Rule for Foreigners Subject to Accelerated Deportation.” He said, “The new rule is likely to be challenged in court. The Department of Homeland Security is about to publish a final rule that revises the nation’s asylum procedures. In general, it would allow USCIS asylum officers to initially hear asylum claims instead of people appearing before an immigration judge. The goal is to have a more streamlined asylum system so that people get a decision in months instead of years in our backlogged immigration courts.” However, he noted, “conservative states, like Texas, are likely to challenge the new rule in court for encouraging more asylum claims. So the new rule may not come into effect for some time. But if implemented, it would help alleviate immigration court backlogs and could provide a fairer and faster system for asylum seekers.” https://www.univision.com/noticias/inmigracion/nueva-regla-asilo-deportacion-acelerada [Spanish, with English translation available]

Mr. Yale-Loehr was quoted by the Los Angeles Times in “Hollywood Hotels Scrutinized for Financing Under Visa Program: ‘Not Fair,’ Say Critics.” He noted that the EB-5 immigrant investor green card program has sparked controversy because some developers have fraudulently taken the foreign investments and failed to develop the projects and the jobs that were promised. It is also a complicated program that “is somewhat opaque to the average person because they don’t see any direct jobs created,” he added. https://www.latimes.com/business/story/2022-03-14/eb5-hollywood-hotels-unite-here-local-relevant-group-financing-dispute

Mr. Yale-Loehr was quoted by Forbes in “Investor Immigrants Greet Imminent Revival of the EB-5 Program.” The article discusses the March 15, 2022, revival of the EB-5 regional center program under the omnibus bill passed by Congress. The article includes a summary of the bill co-authored by Mr. Yale-Loehr, Kristal Ozmun, and Nick Hinrichsen (Miller Mayer, LLP). https://www.forbes.com/sites/andyjsemotiuk/2022/03/09/investor-immigrants-greet-imminent-revival-of-the-eb-5-program/?sh=7223bbff7436
(see also https://millermayer.com/2022/breaking-congress-reauthorizes-eb-5-regional-center-program-through-2027/)

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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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In this issue:

1. International Entrepreneur Update: National Advocacy Groups Recommend Streamlining Parole Program; House Passes Bill To Create New Visa – There have been several recent developments of interest to international entrepreneurs.

2. USCIS Releases Form I-9 Guidance for H-2B Workers Seeking to Change Employers – The guidance is related to a joint temporary final rule issued January 28, 2022, by the Departments of Homeland Security and Labor.

3. FY 2023 H-1B Cap Initial Registration Period Opens March 1 – The initial registration period for the fiscal year 2023 H-1B cap will open at noon ET on March 1, 2022, and run through noon ET on March 18, 2022.

4. DHS, DOL Announce Availability of Additional H-2B Visas for First Half of Fiscal Year – The Departments of Homeland Security and Labor announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. The visas are for “U.S. employers that are facing irreparable harm without additional workers and [are] seeking to employ additional workers on or before March 31, 2022.” The additional H-2B visas became available to employers on January 28, 2022.

5. USCIS Updates Guidance on Expedite Requests – U.S. Citizenship and Immigration Services updated its Policy Manual to reflect new guidance, effective immediately, on how the agency determines whether a case warrants expedited treatment.

6. CBP Announces New COVID-19 Vaccine Requirement for Non-U.S. Travelers Entering Via Land and Ferry From Canada, Mexico – The new restriction applies to non-U.S. individuals who are traveling for both essential and non-essential reasons. It does not apply to U.S. citizens, lawful permanent residents, or U.S. nationals.

7. CBP Expands ‘Simplified Arrival’ at International Airports in the South – Simplified Arrival uses facial biometrics to automate the manual document checks that are required for admission into the United States.

8. USCIS Clarifies Guidance on O-1 Nonimmigrants in Arts vs. Motion Pictures and Television – USCIS clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

9. February Visa Bulletin Warns of High Demand in Employment Fourth Category, Notes Upcoming Expiration of SR Religious Workers Category – High demand in the employment fourth preference category may necessitate the establishment of a worldwide final action date in the coming months. Also, no SR visas may be issued overseas, or final action taken on adjustment of status cases, after February 17, 2022, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. by February 17, 2022.

10. USCIS Issues Reminder re Immigration Help Available for Natural Disasters, ‘Other Unforeseen Circumstances’ – USCIS reminded the public that the agency offers immigration services “that may help people affected by unforeseen circumstances such as natural disasters,” including the Marshall fire in Colorado.

11. Justice Dept. Settles Immigration-Related Discrimination Claims With Frozen Food Company – The settlement resolves claims that the company discriminated against non-U.S. citizens based on their citizenship status when checking their permission to work in the United States.

12. USCIS To Hold Listening Session on L Petition Adjudications – The listening session is for stakeholders to provide feedback on modernizing and simplifying the regulations governing L petition adjudications.

13. DHS OIG Finds That Manual Processing Slowed USCIS Benefits Delivery During Pandemic – In a new report, the Department of Homeland Security’s Office of Inspector General found that continued reliance on manual processing slowed U.S. Citizenship and Immigration Services’ benefits delivery during the COVID-19 pandemic. USCIS concurred with OIG’s recommendations.

14. OFLC Completes Random Assignments of H-2B Applications Submitted for Work Starting April 1, 2022 – OFLC has completed randomly assigning all H-2B applications submitted during the initial filing window, January 1-3, 2022, requesting an April 1, 2022, work start date for the second half of the FY 2022 H-2B statutory visa cap.

15. EOIR Mandates E-Filing as of February 11, 2022 – Effective February 11, 2022, the Executive Office for Immigration Review is requiring electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.

16. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul and Baghdad – Those who are DV selectees for the 2022 DV program year with a case assigned to the U.S. embassy in Kabul, Afghanistan, or Baghdad, Iraq, should request reassignment of their DV cases to another embassy or consulate that processes immigrant visa applications.

17. USCIS Plans E-Verify Records Disposal for April 1, 2022 – E-Verify employers have until March 31, 2022, to download case information from the Historic Records Report.

18. ABIL Global: United Kingdom – The United Kingdom’s (UK) new Global Business Mobility (GBM) route launch is fast approaching.

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

Download:

ABIL Immigration Insider – February 2022

1. International Entrepreneur Update: National Advocacy Groups Recommend Streamlining Parole Program; House Passes Bill To Create New Visa

There have been several recent developments of interest to international entrepreneurs:

National Advocacy Group Recommendations

The Coalition for International Entrepreneurship, which consists of three dozen immigration and startup advocacy organizations and individuals, sent a letter on February 1, 2022, asking Department of Homeland Security (DHS) Secretary Alejandro Mayorkas to streamline the International Entrepreneur Parole (IEP) program. Signers included the American Immigration Lawyers Association, Carnegie Mellon University Graduate Student Assembly, the National Immigration Forum, and others.

As background, last year, the Biden administration rescinded a Trump-era rule that would have ended the IEP program. The program uses DHS’s authority to grant parole to foreign nationals whose admission would be a public benefit. However, according to reports, obstacles remain, and the IEP remains a crucial program, especially in the absence of a U.S. start-up visa.

The coalition’s letter makes five key recommendations:

1. Immediately establish premium processing for IEP applications so qualified entrepreneurs can rapidly launch their businesses in the United States.
2. Incorporate the use of the Validation Instrument for Business Enterprises (VIBE) program to streamline the qualification process for investors. The letter noted that this program is already being used to validate information about companies petitioning to employ nonimmigrant and immigrant workers through Forms I-129 (for the H-1B, for example), I-140, I-360, and I-485.
3. Modify U.S. Citizenship and Immigration Services (USCIS) guidance on the term “qualified investor” to ensure that investors with passive foreign limited partners are not unnecessarily excluded.
4. Restart the USCIS Entrepreneur in Residence initiative to develop routine feedback loops with stakeholders and consider a hybrid model with both virtual and in-person activities to improve entrepreneurs’ ability to participate and decrease the agency’s administrative and badging burdens.
5. Establish regular interaction with stakeholders in the academic, entrepreneur, legal, and investment communities to further refine the program. The letter suggested that increased interaction could include more events hosted by the Public Engagement Division, or the creation of an entrepreneurship subcommittee for the Homeland Security Academic Advisory Council (HSAAC).

America COMPETES Act Passes in House

Also, on February 4, 2022, the House of Representatives passed the America COMPETES Act of 2022 (H.R. 4521). The bill would exempt international science, technology, engineering, and mathematics (STEM) PhD graduates from the green card numerical cap, create a new visa category for entrepreneurs, and provide temporary protected status for Hong Kong residents. A conference committee is expected to address significant differences between the House bill and the Senate’s U.S. Innovation and Competition Act (S. 2012), according to NAFSA: Association of International Educators.

In addition, the Biden administration introduced measures on January 21, 2022, to attract and retain STEM international talent.

Details:

• Letter to Alejandro Mayorkas from the Coalition for International Entrepreneurship, Feb. 1, 2022, https://progress.institute/wp-content/uploads/2022/02/CIE-Open-Letter.pdf
• “Establishing a National Strategy for International Education,” NAFSA: Association of International Educators, https://www.nafsa.org/establishing-national-strategy-international-education
• “Fact Sheet: Biden-Harris Administration Actions to Attract STEM Talent and Strengthen Our Economy and Competitiveness,” White House, Jan. 21, 2022,

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2. USCIS Releases Form I-9 Guidance for H-2B Workers Seeking to Change Employers

On February 4, 2022, U.S. Citizenship and Immigration Services released guidance on Form
I-9, Employment Eligibility Verification, for H-2B workers seeking to change employers.

The guidance is related to a joint temporary final rule issued January 28, 2022, by the Departments of Homeland Security and Labor to increase the numerical limits on fiscal year 2022 H-2B nonimmigrant visas and temporarily provide portability flexibility for H-2B workers already in the U.S. to begin work immediately with a new employer after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS and before it is approved.

Details:

• “Form I-9 Guidance for H-2B Workers Seeking to Change Employers,” USCIS, Feb. 4, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/form-i-9-guidance-for-h-2b-workers-seeking-to-change-employers-0
• Joint temporary final rule, DHS/DOL, 87 Fed. Reg. 4722 (Jan. 28, 2022), https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01866.pdf

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3. FY 2023 H-1B Cap Initial Registration Period Opens March 1

The initial registration period for the fiscal year (FY) 2023 H-1B cap will open at noon ET on March 1, 2022, and run through noon ET on March 18, 2022, U.S. Citizenship and Immigration Services (USCIS) announced. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using the USCIS online H-1B registration system, for foreign workers with an October 1, 2022, start date.

USCIS will assign a confirmation number to each registration submitted for the FY 2023 H-1B cap. USCIS said that this number is used solely to track registrations and cannot be used to track case status in Case Status Online.

USCIS said prospective H-1B cap-subject petitioners or their representatives must use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (“registrants”—U.S. employers and U.S. agents) will use a “registrant” account. Registrants will be able to create new accounts beginning at noon ET on February 21, 2022, but must wait until March 1 to enter beneficiary information and submit the registration with fee.

If USCIS receives enough registrations by March 18, it will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. The agency said it will notify selected account holders by March 31.

USCIS noted that an H-1B cap-subject petition, including a petition for a beneficiary who is eligible for the advanced degree exemption, may only be filed by a petitioner whose registration for the beneficiary named in the H-1B petition was selected in the H-1B registration process.

Details:

• USCIS alert, Jan. 28, 2022, https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-initial-registration-period-opens-on-march-1

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4. DHS, DOL Announce Availability of Additional H-2B Visas for First Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. The visas are for “U.S. employers that are facing irreparable harm without additional workers and [are] seeking to employ additional workers on or before March 31, 2022.” The additional H-2B visas became available to employers on January 28, 2022.

DHS said that this supplemental cap increase “marks the first time that DHS is making additional H-2B visas available in the first half of the fiscal year.”

The supplemental H-2B visa allocation includes 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras.

In support of the rule, DOL’s Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-5 and accompanying instructions. The temporary rule requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. The employer must submit the attestation to USCIS along with Form I-129, in support of an H-2B application subject to the H-2B cap before March 31, 2022.

Details:

• Joint temporary final rule, DHS, DOL, 87 Fed. Reg. 4722 (Jan. 28, 2022), https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01866.pdf
• DHS release, Jan. 27, 2022, https://www.dhs.gov/news/01/27/dhs-announces-availability-additional-h-2b-visas-first-half-fiscal-year
• OFLC announcement, Jan. 28, 2022, https://www.dol.gov/agencies/eta/foreign-labor
• New Form ETA-9142-B-CAA-5 () and General Instructions ()
• Cap Count for H-2B Nonimmigrants, USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-for-h-2b-nonimmigrants

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5. USCIS Updates Guidance on Expedite Requests

U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual to reflect new guidance, effective immediately, on how the agency determines whether a case warrants expedited treatment. The update:

• Clarifies the criteria and circumstances under which USCIS generally considers expedite requests from nonprofit organizations as determined by the Internal Revenue Service;
• Provides additional examples of when USCIS may consider expedite requests made by federal, state, or local agencies, including labor and employment agencies;
• Adds examples to further illustrate how the expedite criteria relate to emergencies and urgent humanitarian reasons; and
• Explains that some circumstances may affect or delay the agency’s ability to expedite an application or petition.

Details:

• USCIS alert, Jan. 25, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-expedite-requests
• How to Make an Expedite Request, USCIS, https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request

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6. CBP Announces New COVID-19 Vaccine Requirement for Non-U.S. Travelers Entering Via Land and Ferry From Canada, Mexico

As of January 22, 2022, the Department of Homeland Security (DHS) is requiring non-U.S. individuals seeking to enter the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated for COVID-19 and provide related proof of vaccination. DHS said this was necessary as COVID-19 cases continue to rise nationwide.

The new restriction applies to non-U.S. individuals who are traveling for both essential and non-essential reasons. It does not apply to U.S. citizens, lawful permanent residents, or U.S. nationals.

The Biden administration previously ordered that noncitizen nonimmigrants be vaccinated against COVID-19 before entering the United States by air, except in limited circumstances.

Details:

• “Fact Sheet: Guidance for Travelers to Enter the U.S. at Land Ports of Entry and Ferry Terminals,” DHS, updated Jan. 20, 2022, https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals
• CBPOne Mobile Application (single portal to a variety of CBP services), https://www.cbp.gov/about/mobile-apps-directory/cbpone

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7. CBP Expands ‘Simplified Arrival’ at International Airports in the South

U.S. Customs and Border Protection (CBP) announced the implementation of Simplified Arrival at six airports in the states of Arkansas, Louisiana, Mississippi, Alabama, and Tennessee: Rogers Municipal Carter Field Airport, Lakefront Airport, Alexandria (Louisiana) International Airport, Gulfport Biloxi International Airport, Birmingham-Shuttlesworth International Airport, and Memphis International Airport.

Simplified Arrival uses facial biometrics to automate the manual document checks that are required for admission into the United States. Facial biometrics fulfill a longstanding congressional mandate to biometrically record the entry and exit of non-U.S. citizens, CBP said. To date, according to CBP, more than 130 million travelers have participated in the biometric facial comparison process at air, land, and sea ports of entry.

The Simplified Arrival process includes comparing a new photo taken on arrival at the primary inspection point to images the traveler has already provided to the government, such as passport and visa photos. Those who have previously traveled to the United States “may no longer need to provide fingerprints as their identity will be confirmed through the touchless facial comparison process,” CBP said. Travelers who opt out of the Simplified Arrival process must present a valid travel document for inspection by a CBP officer.

Details:

• CBP release, Jan. 24, 2022, https://www.cbp.gov/newsroom/local-media-release/cbp-expands-simplified-arrival-international-airports-south

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8. USCIS Clarifies Guidance on O-1 Nonimmigrants in Arts vs. Motion Pictures and Television

U.S. Citizenship and Immigration Services (USCIS) clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

USCIS explained that individuals of extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry may be eligible for O-1B classification. The updated guidance “will help officers and petitioners determine whether a beneficiary falls into the arts category or the motion picture and television category” and “will help with cases that have elements of both classifications, such as actors, directors, composers, or set designers who work in both motion pictures and television and live theater. It will also help officers and petitioners understand where streaming internet productions fall in these categories,” USCIS said.

Among other things, the guidance notes that analysis of whether a production is within the motion picture or television industry (MPTV) is not limited to whether it will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. “While static web materials and self-produced video blogs and social media content generally do not fall into the MPTV category, USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview,” USCIS said. Accordingly, USCIS “may properly consider work on such productions to fall under the O-1B (MPTV) classification.”

Details:

• USCIS alert, Jan. 13, 2022, https://www.uscis.gov/newsroom/alerts/uscis-provides-clarifying-guidance-on-o-1-nonimmigrants-in-arts-vs-motion-picture-and-television
• “Policy Alert: Determining the Appropriate O-1B Classification for Persons of Extraordinary Ability in the Arts or Extraordinary Achievement in the Motion Picture or Television Industry,” USCIS, Jan. 13, 2022, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220113-ExtraordinaryAbility.pdf
• USCIS Policy Manual, Chapter 4, O-1 Beneficiaries, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4

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9. February Visa Bulletin Warns of High Demand in Employment Fourth Category, Notes Upcoming Expiration of SR Religious Workers Category

The Department of State’s Visa Bulletin for February 2022 notes that high demand in the employment fourth preference category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the fiscal year 2022 annual limit. DOS said the situation will be continually monitored and any necessary adjustments will be made.

The bulletin notes that for El Salvador, Guatemala, and Honduras, the rate of demand increased primarily for adjustment of status cases “and will require corrective action as early as March to hold number use within allowable limits. Also, for Mexico, the bulletin says that “corrective action may be necessary in the coming months.”

The bulletin also notes the upcoming expiration of the employment fourth preference Certain Religious Workers (SR) category as of February 18, 2022: “No SR visas may be issued overseas, or final action taken on adjustment of status cases,” after February 17, 2022, and “all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S.” by February 17, 2022.

Details:

• Visa Bulletin for February 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-february-2022.html

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10. USCIS Issues Reminder re Immigration Help Available for Natural Disasters, ‘Other Unforeseen Circumstances’

U.S. Citizenship and Immigration Services (USCIS) issued a notice on January 12, 2022, reminding the public that the agency offers immigration services “that may help people affected by unforeseen circumstances such as natural disasters,” including the Marshall fire in Colorado.

USCIS said following measures may be available on a case-by-case basis upon request:

• Changing nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. “Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control,” USCIS said;
• Re-parole 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 employment authorization applications, where 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 Documents, and Arrival/Departure Record (Form I-94); and
• Rescheduling a biometric services appointment.

Details:

• USCIS alert, Jan. 12, 2022, https://www.uscis.gov/newsroom/alerts/immigration-help-available-to-those-affected-by-natural-disasters-and-other-unforeseen-circumstances-0

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11. Justice Dept. Settles Immigration-Related Discrimination Claims With Frozen Food Company

The Department of Justice (DOJ) reached a settlement agreement with Buddy’s Kitchen Inc., a Minnesota-based company that produces and distributes frozen foods. The settlement resolves claims that the company discriminated against non-U.S. citizens based on their citizenship status when checking their permission to work in the United States.

DOJ said its investigation revealed that the company routinely discriminated by asking non-U.S. citizens, primarily lawful permanent residents, to present specific Department of Homeland Security-issued documents to prove their authorization to work in the United States, while making no such request of U.S. citizens. Under the settlement, Buddy’s Kitchen will pay $40,000 in civil penalties, change its employment policies to comply with the anti-discrimination provision of the Immigration and Nationality Act, and train its employees who are responsible for verifying workers’ permission to work in the United States.

In a statement released on January 14, 2022, DOJ said, “All employees have the right to choose the valid documentation they wish to present when demonstrating that they have permission to work in the United States.”

Details:

• Media release, Dept. of Justice, Jan. 10, 2022,

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12. USCIS To Hold Listening Session on L Petition Adjudications

U.S. Citizenship and Immigration Services (USCIS) held a listening session on January 25, 2022, for stakeholders to provide feedback on modernizing and simplifying the regulations governing L petition adjudications. USCIS is seeking input on all aspects of L adjudications, including L-1A managers and executives, L-1B specialized knowledge workers, new office petitions, blanket petitions, and evidentiary issues. USCIS said this is part of a series of listening sessions that USCIS will host in the coming months to seek input on business and foreign worker-related policy considerations.

Details:

• See https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_530. Send any questions to [email protected] or see https://www.uscis.gov/outreach/contact-public-engagement

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13. DHS OIG Finds That Manual Processing Slowed USCIS Benefits Delivery During Pandemic

The Department of Homeland Security’s Office of Inspector General (OIG) released a report on December 28, 2021, finding that continued reliance on manual processing slowed U.S. Citizenship and Immigration Services’ benefits delivery during the COVID-19 pandemic.

OIG found that USCIS had limited capability to electronically process more than 80 types of benefits, which still required some manual workflows and paper files to complete cases. Recurring technology performance issues and equipment limitations further constrained USCIS employees’ productivity, OIG said, attributing the challenges to “funding cuts and lost fee revenue that limited spending during this time.” OIG noted that these challenges “further increased processing times and resulted in a backlog of 3.8 million cases as of May 2021.”

The report includes two recommendations aimed at improving USCIS’s electronic processing of benefits, with which USCIS concurred:

Recommendation 1: Update the USCIS pandemic plan to incorporate additional technology guidance and lessons learned during the COVID-19 pandemic. The estimated completion date is December 30, 2022. OIG considers this recommendation to be “open and resolved.” OIG said a formal closeout letter to be submitted should be accompanied by “evidence of completion of agreed-upon corrective actions and of the disposition of any monetary amounts.”

Recommendation 2: Develop an updated strategy for digitizing all benefits work and tracking the outcome of improving case processing times, including a detailed funding plan, in accordance with the Emergency Stopgap USCIS Stabilization Act. OIG considers this recommendation to be “resolved and closed.”

Details:

• “Continued Reliance on Manual Processing Slowed USCIS’ Benefits Delivery During the COVID-19 Pandemic,” DHS/OIG, Dec. 28, 2021, https://www.oig.dhs.gov/sites/default/files/assets/2022-01/OIG-22-12-Dec21.pdf

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14. OFLC Completes Random Assignments of H-2B Applications Submitted for Work Starting April 1, 2022

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has completed randomly assigning all H-2B applications submitted during the initial filing window, January 1-3, 2022, requesting an April 1, 2022, work start date for the second half of the fiscal year 2022
H-2B statutory visa cap.

OFLC reported receiving 7,875 H-2B applications requesting 136,555 worker positions during the filing period. OFLC said it will notify employers (and authorized attorneys or agents) of their H-2B Assignment Group. The agency published a list of the H-2B applications assigned to each group on January 7, 2022.

Details:

• OFLC notices, Jan. 7, 2022, and Jan. 4, 2022, https://www.dol.gov/agencies/eta/foreign-labor
• Assignment Group list, OFLC, Jan. 7, 2022, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2B%20Randomization%20List%20January%202022.pdf
• Randomization procedures, Employment and Training Administration, 84 Fed. Reg. 7399 (Mar. 4, 2019), https://www.govinfo.gov/content/pkg/FR-2019-03-04/pdf/2019-03809.pdf

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15. EOIR Mandates E-Filing as of February 11, 2022

Effective February 11, 2022, the Executive Office for Immigration Review (EOIR) will require electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.

Users can view training materials on EOIR’s website, including infographics and videos on how to upload and download documents on its Courts & Appeals System.

Details:

• EOIR final rule, 86 Fed. Reg. 70708 (Dec. 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-13/pdf/2021-26853.pdf
• ECAS User Manual and other how-to information, https://www.justice.gov/eoir/ecas/attorney-and-ar-resources

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16. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul and Baghdad

The Department of State announced on January 5, 2022, that those who are Diversity Visa (DV) selectees for the 2022 DV program year with a case assigned to the U.S. embassy in Kabul, Afghanistan, or Baghdad, Iraq, should request reassignment of their DV cases to another embassy or consulate that processes immigrant visa applications. Such persons must be physically present in the consular district where the embassy or consulate is located at the time of interview and have permission to remain in the country by the host government for a period sufficient to complete processing.

Reassignment of a case to another embassy or consulate does not mean that it will be automatically scheduled for an immigrant visa interview. The interview will be scheduled after the DS-260 immigrant visa application has been fully processed, when the case number is current according to the Visa Bulletin, and when the reassigned embassy or consulate has an interview appointment available.

Details:

• “Diversity Visa Reassignment Procedures for Kabul and Baghdad,” Jan. 5, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-reassignment-procedures-for-kabul-and-baghdad.html

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17. USCIS Plans E-Verify Records Disposal for April 1, 2022

U.S. Citizenship and Immigration Services (USCIS) plans to dispose of E-Verify records that are more than 10 years old on April 1, 2022. (USCIS defined “more than 10 years old” as “those dated on or before Dec. 31, 2011.) E-Verify employers have until March 31, 2022, to download case information from the Historic Records Report if they want to retain information about these E-Verify cases, USCIS said.

USCIS noted that employers must record the E-Verify case verification number on the corresponding Form I-9, Employment Eligibility Verification, or attach a copy of the case details page to the I-9 form. Employers should retain the Historic Records Report with the I-9 forms.

Details:

• “E-Verify Records Disposal,” USCIS, Jan. 6, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/e-verify-records-disposal
• “Fact Sheet: E-Verify Records Retention and Disposal,” USCIS, Jan. 20, 2021, https://www.e-verify.gov/sites/default/files/everify/factsheets/E-VerifyNARAFactSheet.pdf
• “Instructions to Download Historic Records Reports in E-Verify,” USCIS, Jan. 20, 2021, https://www.e-verify.gov/sites/default/files/everify/infosheets/DownloadNARAReportsinE-Verify.pdf

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18. ABIL Global: United Kingdom

The United Kingdom’s (UK) new Global Business Mobility (GBM) route launch is fast approaching.

What can we expect from the UK’s new GBM visa?

The intended launch of the GBM route is fast approaching. The Home Office promised a “cohesive system” for overseas businesses to assign employees to the UK for a range of business purposes by spring 2022. The new visa route will consolidate and expand on an array of existing immigration routes and introduce new opportunities for businesses both with and without a UK presence.

The GBM route will consist of five categories:

• Senior or specialist worker—for individuals whose skills are required in the UK for a specific business purpose;
• Graduate trainee—for individuals who are on a UK placement as part of a structured training program;
• UK expansion worker—for individuals who are on an assignment as part of a UK expansion of the business;
• Secondment worker—for business-specific secondments; and
• Service supplier—for individuals travelling to the UK to deliver a service in line with a UK trade commitment.

The requirements for the GBM visa will be based predominantly on those of the Intra-Company Transfer (ICT) route. This means that the UK business receiving the workers will require a sponsor license. The workers will need to satisfy salary and skill thresholds and should have completed a minimum period of employment overseas before applying. There will be no English language requirement. Although assignments on the GBM route will be temporary, there will be flexibility to switch to other permanent routes, such as the Skilled Worker route.

The Home Office said that the exact requirements for the route will be subject to the Migration Advisory Committee’s (MAC) review and may depend on the GBM subcategory in question. In its review of the ICT route in October 2021, the MAC made a series of recommendations, including increasing the minimum salary threshold and allowing time spent on the ICT route to count toward settlement. It will be interesting to see if these recommendations are incorporated within the GBM provisions under the Immigration Rules.

While some of the subcategories of the GBM visa mirror existing routes (the Graduate trainee, for example, is similar to the Intra-Company Graduate Trainee), others provide a new route for overseas businesses to send employees to the UK. The UK expansion worker, for example, is set to supplement the Representative of an Overseas Business route, allowing overseas businesses to send more than one worker and access the Sponsor Management System to manage assigned employees. However, unlike the Representative of an Overseas Business route, the UK expansion worker, and all the subcategories of the GBM visa, will be a sponsored route. This raises additional challenges—in terms of both logistics and costs—for employers and the Home Office, with the latter having to monitor the compliance of sponsor license holders located outside the UK.

In the coming weeks, further clarification is expected from the Home Office on how individuals and companies can apply under the GBM route and the permitted activities for a GBM migrant in the UK. It is hoped that the Home Office will also clarify the potential sponsor license system for overseas businesses and how it plans to carry out future compliance checks.

Details:

• “Intra-Company Transfer Report: October 2021,” Gov.uk,

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New Publications and Items of Interest

Readout and fact sheet on immigration-related executive order progress. U.S. Citizenship and Immigration Services (USCIS) released a readout of USCIS Director Ur M. Jaddou’s virtual briefing with stakeholders to mark the one-year anniversary of immigration-related executive orders and a related fact sheet on progress on those orders. Readout: ; Fact Sheet: https://www.uscis.gov/sites/default/files/document/fact-sheets/FINAL_EO_Anniversary_Progress_FactSheet_2_3.pdf

DACA survey. Results from a survey of Deferred Action for Childhood Arrivals (DACA) recipients conducted by the Center for American Progress, United We Dream, and the National Immigration Law Center were released. This year’s responses showed that “amid the backdrop of continued uncertainty for DACA recipients and the ongoing COVID-19 pandemic, the gains made possible through DACA are vulnerable.” Even with legal challenges threatening its future, DACA “remains a critical lifeline for hundreds of thousands of people. The 2021 survey results make it abundantly clear why Congress must take immediate action to permanently protect DACA recipients—as well as people who have been unable to access the program due to the legal challenges—by providing them a pathway to citizenship,” the Center for American Progress said. https://www.americanprogress.org/article/2021-survey-of-daca-recipients-underscores-the-importance-of-a-pathway-to-citizenship/

USCIS webinar on H-1B electronic registration process. U.S. Citizenship and Immigration Services (USCIS) will hold a webinar, “H-1B Electronic Registration Process,” on Thursday, February 24, 2022, from 2 to 3 p.m. ET. USCIS representatives will updates on the myUSCIS online account features for the FY 2023 H-1B electronic registration process and address questions. USCIS encourages participants to submit questions in advance to [email protected] by February 8, 2022, at noon ET. Enter “H-1B Electronic Registration Process” in the subject line. To register, go to USCIS registration page (); enter your email address; submit; select “Subscriber Preferences”; select the “Questions” tab; provide your location, organization name and type (if applicable); complete the questions; and select “Submit.” USCIS will process your registration and send you a confirmation email with additional details. Email [email protected] with any questions or registration issues.

GAO report on DACA. The U.S. Government Accountability Office (GAO) released a new report, “Immigration: Information on Deferred Action for Childhood Arrivals” (GAO-22-104734). The report notes that in 2012, U.S. Citizenship and Immigration Services published guidance explaining that it would not proactively provide information from denied DACA requests to immigration enforcement agencies unless the requestor posed a potential public safety risk or the request was potentially fraudulent. GAO found that USCIS shared such information with enforcement agencies in rare circumstances between June 2012 and June 2021. Specifically, of the 106,000 DACA requests that USCIS denied, it referred fewer than 900 cases (less than 1 percent) to U.S. Immigration and Customs Enforcement. https://www.gao.gov/products/gao-22-104734

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Foster LLP presented a webinar, “Immigration: Are You Ready for 2022?,” on January 26, 2022. Presenters discussed what employers should keep in mind when planning their organization’s immigration needs for 2022 and the importance of immigration policy. Topics included a brief recap of 2021; business needs and developing corporate immigration policy; immigration timelines and compliance, including H-1B, L-1, TN, global sponsorship, permanent residence sponsorship, and I-9 compliance; and hot topics. Speakers included Avalyn Langemeier, Philip Eichorn, and Vi Palacios

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by the Atlanta Journal-Constitution in ” ‘A Huge Burden’: Bail Bonds for Detained Immigrants Higher in Georgia.” Mr. Kuck said, “It disappoints me that Georgia immigration courts seem to be setting higher bonds than other parts of the United States. [But] is there a correlation between a higher bond and an appearance [in court]? I don’t think there is. Anecdotally, from my own experience having represented thousands of people in immigration court, there is no correlation at all.” https://www.ajc.com/news/a-huge-burden-bail-bonds-for-detained-immigrants-higher-in-georgia/QAM6MJ4GQBESVIQEHGQZG3PPME/

Robert Loughran announced:

• Avalyn Langemeier spoke on a panel, “What the H?!,” at the Texas Bar’s 20th Annual Course in Advanced Immigration Law on February 3-4, 2022. The panel discussed the failure to advise an employer/employee correctly on immigration matters, ethics, and situations that might arise. https://www.texasbarcle.com/materials/Programs/4303/Brochure.pdf
• Oxana Bowman, Cathy Liu, and Andrés Zamberk will discuss in their webinar, “To (H-1)B or Not to (H-1)B—Preparing for the H-1B Cap Season,” the definition and elements of eligibility for the H-1B visa, lottery selection, and relevant timelines for the fiscal year 2023 H-1B cap registration process, and helpful tips when working with H-1B candidates and the H-1B process. The webinar, hosted by Foster LLP, will be held February 9, 2022. https://attendee.gotowebinar.com/register/8082799567985137419

·         Avalyn Langemeier, Philip Eichorn, and Vi Palacios discussed in their webinar, “Immigration: Are You Ready for 2022?,” what employers should keep in mind when planning their organization’s immigration needs for 2022 and the importance of an immigration policy. This webinar was held January 26, 2022. https://attendee.gotowebinar.com/register/244362480959499536·         Avalyn Langemeier discussed in her presentation, “Is Immigration to the U.S. Good for America?,” the contributions of immigrants and why immigrants are needed in the United States, in the Legalkwik seminar on January 27, 2022, hosted by HR Houston. https://www.hrhouston.org/events/EventDetails.aspx?id=1544444&group=·         Oxana Bowman and Sandra Dorsthorst discussed in their webinar, “To (H-1)B or Not to (H-1)B – Cap Season,” strategies for contingency planning for employers whose sponsored employees are not selected in the H-1B cap lottery. This webinar, hosted by HR Houston, was held January 13, 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1578132&group=

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) and Jessica Paszko co-authored a new blog post: “Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria.”

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the U.S. Even If Rejected in the H-1B Lottery,” https://bit.ly/34ftIvM; “Frequently Asked Questions on Transferring the Underlying Basis of an I-485 Application From an I-140 Petition Under India EB-3 to an I-140 Under India EB-2,” https://bit.ly/3fOmG3D

Greg Siskind, of Siskind Susser PC, was quoted by Time in “Tens of Thousands of Afghans Who Fled the Taliban Are Now Marooned in America’s Broken Immigration Bureaucracy.” The article notes that Afghans left behind after the U.S. evacuation were caught in a Catch-22: to be approved for humanitarian parole, they were told they must go to a U.S. embassy for vetting and biometrics screenings, but the U.S. embassy in Afghanistan suspended operations. Mr. Siskind said that when Afghans fled to nearby countries and reported to a U.S. Embassy there, USCIS’s response was, “if you’re out of the country, you’re not in danger anymore, and therefore you’re not eligible for humanitarian parole. His law firm has taken on pro bono cases for Afghans abroad applying for humanitarian parole. Mr. Siskind received his first denial notice from USCIS recently for an Afghan woman who fled to Pakistan with her three teenage children. The woman is a single mother who fears being a target of the Taliban because she worked with the World Bank, he said. USCIS didn’t explain why the woman was rejected; a line from the USCIS notice said simply that the agency “determined that parole is not warranted. Therefore we have denied your request for parole,” Mr. Siskind said. https://time.com/6141516/afghans-humanitarian-parole/

William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US), Michele Madera, and Nigel James of Klasko Immigration Law Partners, LLP, presented on January 19, 2022, lessons learned from the 2021 H-1B cap season to help companies plan for the upcoming 2022 H-1B lottery. They also provided updates on regulations and litigation outcomes. https://us06web.zoom.us/webinar/register/7216413311518/WN_vwfA4iA2QTO95p2dttvdlg

Wolfsdorf Rosenthal LLP has published several new blog posts: “State Dept. Announces F/M/J Nonimmigrant Visa Processing Posts Outside of Moscow for Applicants Resident in Russia”; “Biden Administration Implements New Actions to Increase Opportunities for STEM Students, Professionals, Others”; “Immigration Update”; “February 2022 Visa Bulletin Update”; and “I-9 Form Update: COVID-19 Pandemic-Related Temporary Policies, Employer Tips.” https://wolfsdorf.com/news/  https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Baptist News Global in “America’s Economy Urgently Needs More Immigrant Labor, Experts Explain.” Noting that the fields of science, technology, engineering, and mathematics (STEM) are areas where the United States could use a boost of immigrants, Mr. Yale-Loehr commented that the Biden administration’s shift in federal policy to make it easier for STEM scholars to work in the United States is a good first step, “but we must do more to address existing backlogs. So many workers have to be laid off because their [work] permits have expired.” https://baptistnews.com/article/americas-economy-urgently-needs-more-immigrant-labor-experts-explain/#.YfXCRprMK71

Mr. Yale-Loehr was quoted by Vox in “Biden Is Defending Key Trump Immigration Policies in Court.” For the Biden administration, he said, defending some of the Trump administration’s most controversial immigration policies could be an attempt to preserve tools to manage the border, or they could mark an internal disagreement on righting the wrongs of the Trump era. “Every administration wants to have as much flexibility and discretion as it can on immigration because you never know what conditions will arise in the future,” he said. https://www.vox.com/22893065/biden-family-separations-title-42-border-court

Mr. Yale-Loehr was quoted by Law360 in “Breyer Leaves Legacy of Extending Constitution to Migrants.” The article noted that U.S. Supreme Court Justice Stephen Breyer, who announced his retirement after nearly three decades on the bench, leaves behind a legacy of influential legal opinions and dissents that sought to extend constitutional rights and protections to noncitizens. Mr. Yale-Loehr stated that Justice Breyer “did not always prevail in extending constitutional or statutory rights to noncitizens.” But “whether he won or lost, Justice Breyer showed a commitment to apply the Constitution to noncitizens.” https://www.law360.com/immigration/articles/1459013/breyer-leaves-legacy-of-extending-constitution-to-migrants (registration required)

Mr. Yale-Loehr was quoted by several media outlets regarding recent U.S. policy changes making it easier for STEM international students to work in the United States:

• “Biden Admin. Expands Definition Of STEM For Int’l Students,” Law360. Mr. Yale-Loehr said, “Together, these administrative changes provide a small but significant step to help keep U.S. companies competitive in a global economy and to address workforce shortages. Larger actions, such as increasing the number of employment-based green cards, will require Congressional action.” https://www.law360.com/immigration/articles/1457587/biden-admin-expands-definition-of-stem-for-int-l-students (registration required)
• “Foreign Students Will Now Have More Job Opportunities After Visa Modification,” Univision. Mr. Yale-Loehr said, “These changes will help keep American businesses competitive. The policy changes will make it easier for international students and professionals in so-called STEM fields to stay and work in the United States for an extended period of time after they complete their studies and graduate. Among other things, the changes add 22 new STEM fields, including bioenergy, cloud computing, and data science, that international students can study to qualify for work in the United States for up to three years after graduation.” https://www.univision.com/noticias/inmigracion/estudiantes-visas-f-1-tendran-mas-oportunidades-para-trabajar-eeuu (in Spanish, with English translation available)

Mr. Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by the Utica NY Observer-Dispatch in ” ‘Not to be there…is killing me’: Professor Aches for Comatose Wife Stuck in Ethiopia.” Mr. Yale-Loehr noted that both the pandemic and the United States’ “broken” immigration system have led to many family separations. “Family separation is a large and continuing problem in all of immigration,” he said. (subscription required)

Mr. Yale-Loehr was quoted by Univision in “Supreme Court Hears Arguments on the Release of Undocumented Persons Detained for More Than 6 Months.” He said, “Two lower courts held that, in certain cases, immigrants have that right [to a bail hearing]. But the conservative majority of the Supreme Court may disagree with those rulings,” he warns. The arguments, presented by immigration defense attorneys and the Justice Department, concern whether foreigners who have been detained for more than six months “have the right to a bail hearing to be released,” he said. In one of the cases, the immigrant Antonio Arteaga-Martínez argues that to avoid a violation of due process, “he and some other immigrants should have the right to a bond hearing after six months in detention. However, last year, the Supreme Court ruled 6-3 that immigrants who return illegally to the United States after being deported must be held without bond while they await a second deportation hearing,” he noted. Mr. Yale-Loehr said that “the cases are important, in part due to the large backlog of cases in immigration court. More than 1.5 million immigrants have cases pending with the [Executive Office for Immigration Review]. It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense.” https://www.univision.com/noticias/inmigracion/corte-suprema-indocumentados-liberacion-detenidos-seis-meses (in Spanish, with English translation available)

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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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In this issue:

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, following new travel bans imposed on several countries, the Biden administration announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021.

2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions – The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The bill includes several immigration measures.

3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers – After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling.

4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations – The Department of Labor is proposing revisions to the methodology used to determine the AEWRs for non-range agricultural occupations in the H-2A temporary visa program.

5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. Other countries imposed similar bans.

6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit – USCIS expects to issue refunds by March 22, 2022.

7. USCIS Incorporates General Adjudications Guidance Into Policy Manual – In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next – The House of Representatives passed the “Build Back Better” budget reconciliation bill. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and raising some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, $2.8 billion for the Department of Homeland Security to reduce processing backlogs, and recapturing unused green cards that would otherwise expire each year.

9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations – On November 19, 2021, USCIS selected additional registrations to reach the FY 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees – USCIS automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1,

11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December – The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories are “Current” for December.

12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment – U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications.

13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses – Following recent litigation, U.S. Citizenship and Immigration Services announced that certain H-4, E, or L dependent spouses will qualify for an automatic work permit extension if certain conditions are met.

14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States – The Department of Homeland Security will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021.

16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic – The Executive Office for Immigration Review announced that its website will now be “the principal method of communication with the public” regarding COVID-19 pandemic-related notices.

17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022 – In 2022, in addition to the new Illinois facility, USCIS plans more filing location changes.

18. ABIL Global: Canada – This article discusses recent developments in COVID-19-related border measures.

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 – December 2021

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant

Last week, in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who had been in any of eight countries in southern Africa for the prior 14 days would be barred from entry into the United States. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. Since then, the new variant has spread to at least 23 countries, including the United States, and more are likely, according to the World Health Organization. The Biden administration subsequently announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021. Fines for noncompliance with the mask requirement range from $500 for a first offense to $3,000 for repeat violations.

For the testing requirement, the CDC rules state that those who recently recovered from COVID-19 may instead travel with documentation of recovery (i.e., a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that the passenger was cleared to travel).

Regarding the one-day requirement for testing, the CDC explained:

The 1-day period is 1 day before the flight’s departure. The Order uses a 1-day time frame instead of 24 hours to provide more flexibility to the air passenger and aircraft operator. By using a 1-day window, test acceptability does not depend on the time of the flight or the time of day that the test sample was taken.

For example, if your flight is at 1 pm on a Friday, you could board with a negative test that was taken any time on the prior Thursday.

The Biden administration indicated that more countries could be added to the restricted list if warranted. As this is a rapidly developing, fluid situation, travelers should check the latest updates before departure.

Details:

• “New U.S. Travel Rules: What You Need to Know About the Changes Prompted by Omicron,” CNN, Dec. 3, 2021, https://www.cnn.com/travel/article/new-us-travel-rules-omicron-what-to-know/index.html
• “U.S. Tightens Travel Testing Requirements, Mask Mandates as Part of Broader Plan to Fight Covid,” CNBC, Dec. 2, 2021, https://www.cnbc.com/2021/12/02/omicron-covid-variant-us-tightens-travel-testing-requirements-mask-mandates.html
• “Requirement for Proof of Negative COVID-19 Test or Documentation of Recovery From COVID-19,” CDC, Dec. 2, 2021, https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html
• “U.S. Imposes Travel Ban From Eight African Countries Over Omicron Variant,” Nov. 27, 2021, https://www.reuters.com/world/us/us-impose-travel-curbs-eight-southern-african-countries-over-new-covid-19-2021-11-26/
• “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019,” White House, Nov. 26, 2021,

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2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions

The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The House of Representatives passed the bill by a vote of 221-212, and the Senate passed it by a vote of 69-28. President Biden signed it into law on December 3.

The immigration provisions include:

• $7 billion to support Operation Allies Welcome, including resettlement of Afghans who aided U.S. military operations in Afghanistan
• $1.6 billion for services for unaccompanied minors crossing the U.S.-Mexico border who are under the care of the Department of Health and Human Services

Details:

• Text of law to be posted at https://www.congress.gov/bill/117th-congress/house-bill/6119/text
• “BGOV Bill Summary: H.R. 6119, Stopgap Funding and Refugee Aid,” Bloomberg Government, Dec. 2, 2021.
• “Avoiding Shutdown, Congress Approves Bill to Fund Government Through Feb. 18,” NBC News, Dec. 2, 2021, https://www.nbcnews.com/politics/congress/house-democrats-announce-plan-fund-government-prevent-shutdown-n1285214
• “Senate Passes Stopgap Funding Bill, Avoiding Shutdown,” Associated Press News, Dec. 3, 2021, https://apnews.com/article/coronavirus-pandemic-business-health-congress-aa30e5922cb6650e9235b0a66813b2f4

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3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers

After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling in August 2021. President Biden previously called the policy “inhumane” because it forced tens of thousands of people to wait for months in conditions that included violent crimes perpetrated against them, among other risks.

Under the reinstated policy, at Mexico’s request, COVID-19 vaccinations will be provided, exemptions will be possible for reasons including physical and mental health issues, and the time spent in the program will be limited to six months per applicant. The Department of Homeland Security also said that the U.S. government is committed to reimplementing the program “in a way that enhances protection for individuals enrolled in the program.” Among the measures being taken are the provision of access to shelters in Mexico and “safe transit” to and from ports of entry to the shelters, to enable individuals to attend court hearings. Additionally, DHS said, the government of Mexico “has committed to ensuring that individuals enrolled in [the program] are provided temporary legal status in Mexico and will, as a result, be able to work and access services in Mexico.” DHS also said that family units would not be separated for purposes of enrollment in the program. DHS said it would observe “non-refoulement” principles and that no individual who demonstrates a “reasonable possibility of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” or a “reasonable possibility of torture in Mexico” will be returned to Mexico involuntarily.

According to reports, the policy is expected to be re-implemented on December 6, 2021.

Details:

• “U.S. and Mexico to Restart Trump-Era ‘Remain in Mexico’ Policy,” BBC News, Dec. 2, 2021, https://www.bbc.com/news/world-us-canada-59509854
• DHS guidance, Dec. 2, 2021, https://www.dhs.gov/sites/default/files/publications/21_1202_plcy_mpp-policy-guidance.pdf

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4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) is proposing revisions to the methodology used to determine the Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations in the H-2A temporary visa program. DOL said the proposed methodology “will strike a reasonable balance between the statute’s competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of U.S. workers similarly employed.”

DOL proposes to determine AEWRs using wage data reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS) and DOL’s Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) survey. For the six occupations comprising the field and livestock worker (combined) category within the FLS, which DOL said constitute the majority of H-2A job opportunities, the agency proposes to set a single AEWR using the annual average hourly wage for field and livestock workers (combined) for the state or region, as determined by the FLS. For all other job opportunities, and in circumstances where the FLS does not report wage data for the field and livestock worker occupations, DOL proposes to use OEWS wage data to set the AEWR at the statewide annual average hourly wage for the occupational classification, or the national annual average hourly wage if statewide data is unavailable.

Details:

• Announcement, Office of Foreign Labor Certification, Dec. 1, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Proposed rule, Employment and Training Administration, DOL, Dec. 1, 2021, https://www.federalregister.gov/documents/2021/12/01/2021-25803/adverse-effect-wage-rate-methodology-for-the-temporary-employment-of-h-2a-nonimmigrants-in-non-range

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5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant

In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. He said this was in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), which appears to be rapidly spreading in South Africa and present in other countries.

The Biden administration indicated that more countries could be added to the restricted list if warranted. Several other countries also issued similar travel bans and restrictions, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. The variant, which is being studied to determine its contagiousness, severity, and ability to circumvent immunity, has been detected in several countries in addition to Africa, including Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany.

Meanwhile, as of November 27, 2021, the Department of State issued a Level 4 Travel Health Notice for South Africa: “Do not travel to South Africa due to COVID-19.”

Details:

• “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019,” White House, Nov. 26, 2021,
• “U.S. Imposes Travel Ban From Eight African Countries Over Omicron Variant,” Nov. 27, 2021, https://www.reuters.com/world/us/us-impose-travel-curbs-eight-southern-african-countries-over-new-covid-19-2021-11-26/
• “U.S. Announces Travel Restrictions Over New Covid-19 Variant,” CNN, Nov. 27, 2021, https://www.cnn.com/world/live-news/new-covid-variant-south-africa-11-27-21/index.html
• “Travel Doors Slam Shut as New Covid Variant Triggers Alarm, Stranding Hundreds of Passengers,” CNN, Nov. 27, 2021, https://www.cnn.com/travel/article/new-covid-variant-travel/index.html
• “Omicron Variant Detected From Britain to Hong Kong as Countries Race to Impose Controls,” Washington Post, Nov. 27, 2021, https://www.washingtonpost.com/world/covid-variant-fallout-omnicron/2021/11/27/8c6e0548-4f02-11ec-a7b8-9ed28bf23929_story.html
• South Africa Travel Advisory, Dept. of State, Nov. 27, 2021, https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/south-africa-travel-advisory.html

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6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit

U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2021, that it mistakenly rejected certain Forms I-765, Application for Employment Authorization, from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14, 2021, through September 29, 2021. USCIS said it also mistakenly accepted fees where certain petitioners for U nonimmigrant status unnecessarily submitted fees with their I-765 applications.

USCIS expects to issue refunds by March 22, 2022. Individuals who filed an initial bona-fide-determination-related Form I-765 under the (c)(14) eligibility category from June 14 through September 29, 2021, whose Form I-765 was rejected for lack of fee, and who have not refiled, may resubmit Form I-765 without a fee, USCIS said.

Details:

• USCIS alert, Nov. 22, 2021, https://www.uscis.gov/newsroom/alerts/certain-petitioners-for-u-nonimmigrant-status-may-receive-a-refund-for-applications-for-employment

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7. USCIS Incorporates General Adjudications Guidance Into Policy Manual

U.S. Citizenship and Immigration Services (USCIS) announced on November 23, 2021, that it is incorporating existing guidance from the Adjudicator’s Field Manual (AFM) into the USCIS Policy Manual. In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

Among other things, USCIS said the update “explains how officers should handle cases involving unreliable evidence, including consulting the Department of State’s Reciprocity Table, providing information on voluntary DNA collection options, and referring certain cases for in-person interviews. The update also clarifies “that when a petitioner, beneficiary, or authorized representative requests a copy of a signed sworn statement taken during an interview, officers provide a copy of the statement to the affiant (the person making the statement) at the conclusion of the interview where the statement was taken.”

Details:

• USCIS alert, Nov. 23, 2021, https://www.uscis.gov/newsroom/alerts/uscis-incorporates-general-adjudications-guidance-into-the-policy-manual
• USCIS Policy Manual, https://www.uscis.gov/policy-manual

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8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next

The House of Representatives passed the $1.75 trillion “Build Back Better Act” budget reconciliation bill, 220-213, on November 19, 2021. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and increases in some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, and $2.8 billion for the Department of Homeland Security to reduce processing backlogs. The House bill would also recapture more than 200,000 unused green cards that would otherwise expire each year.

In addition, it would provide for diversity visas for those refused a visa, prevented from seeking admission, or denied admission to the United States solely because of certain executive orders and limitations on visa processing, visa issuance, travel and other effects associated with the COVID-19 pandemic.

The Senate will take up the bill next, likely in December. It remains to be seen whether the bill will become law in its current version or will be revised or defeated. Among various factors, Senate Parliamentarian Elizabeth MacDonough earlier rejected several previous immigration-related provisions in the draft bill, such as a path to citizenship for undocumented immigrants, but observers believe some provisions may survive her scrutiny, such as one that would recover roughly 400,000 currently unused green cards.

Below are selected highlights of the House-passed version of the “Build Back Better Act”:

Green Card Provisions for Immigrants Waiting in Backlogs

The House bill’s provisions would allow an employee waiting for more than two years in the backlog of approved legal immigration applications to pay a supplemental fee of $5,000 and file for adjustment of status without waiting for a priority date to become available. Those with approved green card applications awaiting visa availability could pay $1,500 to essentially jump the queue and file for adjustment.

Work Permits

As noted above, the House bill would allow about seven million undocumented immigrants living in the United States since before 2011 to stay in the United States through parole, and to be eligible for work permits valid for five years (renewable once), authorization to travel, and driver’s licenses if they file an application and pay a fee. They could also apply for health insurance under the Affordable Care Act. They would need to pass background checks.

Fee Increases

Examples of supplemental immigration-related fees that would be imposed by the House bill, if passed, include:

• $100 for certain family-sponsored immigrant visa petitions (Forms I-130)
• $800 for each employment-based immigrant visa petition (Forms I-140)
• $15,000 for each employment-based fifth preference petition (Forms I-526)

Details:

• “Build Back Better Act” (most of the immigration-related provisions are on pp. 899–914), H.R. 5376,
• “President Biden Announces the Build Back Better Framework,” White House, Oct. 28, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/28/president-biden-announces-the-build-back-better-framework/
• House Democrats Just Passed Build Back Better—Here’s What’s Included,” CNBC, Nov. 19, 2021, https://www.cnbc.com/2021/11/19/house-dems-just-passed-build-back-betterheres-whats-included.html
• “How the House Spending Bill Sets a Path to Legalization for Undocumented Immigrants,” Washington Post, Nov. 19, 2021, https://www.washingtonpost.com/us-policy/2021/11/19/immigration-biden-spending-bill/ (subscription)
• “What Will the Senate Do With the Build Back Better Bill?,” Time, Nov. 19, 2021, https://time.com/6121614/build-back-better-spending-bill-senate/

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9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations

U.S. Citizenship and Immigration Services (USCIS) announced that on November 19, 2021, it selected additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

USCIS said the petition filing period will begin November 22, 2021, and close on February 23, 2022. Those with selected registrations will receive a selection notice in their myUSCIS accounts with details about when and where to file.

Details:

• USCIS alert, Nov. 19, 2021, https://www.uscis.gov/newsroom/alerts/uscis-conducts-third-random-selection-from-previously-submitted-fy-2022-h-1b-cap-registrations

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10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees

Effective November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1, E-2, and E-3 nonimmigrants. USCIS also automatically extended work authorization for certain H-4 nonimmigrants who are dependent spouses of H-1B nonimmigrants.

Such individuals may receive automatic extensions of their employment authorization documents.

Details:

• “New Requirements Affecting Form I-9 Completion for Certain Employees,” USCIS, Nov. 17, 2021, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/new-requirements-affecting-form-i-9-completion-for-certain-employees
• “Automatic Extensions Based on a Timely Filed Application to Renew Employment Authorization and/or Employment Authorization Document,” Handbook for Employers, Nov. 16, 2021, USCIS,

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11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December

The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories (i.e., “direct” EB-5 investors) are “Current” for December. Both the filing date and final action date are “Current,” meaning that in December, qualified Chinese EB-5 applicants in the visa phase can get green cards regardless of their priority date.

If China-mainland-born number use were to increase at a level that could potentially jeopardize visa availability under the overall FY 2022 employment-based fifth preference annual limit, it would then be necessary to once again impose a final action date, the bulletin says.

The bulletin also notes that:

• Final action dates for the EB-5 (I5 and R5) regional center categories are “Unavailable” for December, but if legislative action extends this category for December, the final action dates would immediately become “Current” for December for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
• The non-minister special immigrant program expires on December 3, 2021. No SR green cards may be issued overseas or final action taken on related adjustment of status cases after that date. Visas issued before this date will have a validity date of December 2, 2021, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight, December 2, 2021. The final action date for this category is “Current” for December for all countries except for El Salvador, Guatemala, Honduras, and Mexico, which are subject to specific final action dates for December. If there is no legislative action extending this category for fiscal year 2022, the final action date would immediately become “Unavailable” for December for all countries effective December 3, 2021.

Details:

• Visa Bulletin for December 2021, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-december-2021.html
• Adjustment of Status Filing Charts From the Visa Bulletin (includes information on dates for filing and final action dates),

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12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment

The Department of Homeland Security issued a 60-day notice and request for comments on revisions to the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program travelers. Specifically, U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications. ESTA applicants will be prompted to take a selfie or “live” photo “to conduct a ‘liveness’ test to determine if the ESTA application is interfacing with a physically present human being and not an inanimate object, or if it is a photo of someone other than the lawful passport holder.” Respondents will be able to scan their passport biographic page to submit biographic information, including passport photo.

CBP will also implement the ESTA mobile application for Visa Waiver Program travelers. The mobile app will collect biometric data.

Details:

• “Arrival and Departure Record, Nonimmigrant Visa Waiver Arrival/Departure, Electronic System for Travel Authorization (ESTA),” 60-day notice and request for comments; revision, 86 Fed. Reg. 64508 (Nov. 18, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-18/pdf/2021-25147.pdf
• ESTA application, https://esta.cbp.dhs.gov/

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13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses

Following recent litigation, U.S. Citizenship and Immigration Services (USCIS) announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met. Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes, USCIS said.

In addition, USCIS will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status, with a few exceptions.

USCIS is also rescinding the 2002 Immigration and Naturalization Service memorandum, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition.”

USCIS’ actions followed a settlement in Shergill v. Mayorkas. The settlement provided structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for work authorization applications. Also as a result of this settlement, as noted above, USCIS will now recognize that L-2 spouses are employment authorized incident to L-2 status. This means that spouses of transferred executives and managers no longer need to apply for work permits before working or starting a business in the United States.

Details:

• “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses,” USCIS Policy Alert, Nov. 12, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf
• Settlement agreement, Nov. 10, 2021,

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14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

The Secretary of Homeland Security, with the concurrence of the secretary of state, has decided to:

• Add Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for the H-2A program), Haiti, Mauritius, and Saint Lucia to the list of countries eligible to participate in the H-2A and H-2B programs; and
• No longer designate Moldova as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program. Moldova’s eligibility for the H-2A program remains effective until January 18, 2022.

Except for Moldova, the designations took effect November 10, 2021, and will remain in effect for one year, until November 10, 2022.

U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions for nationals of countries not on the list on a case-by-case basis if doing so is determined to be in the interest of the United States.

Details:

• USCIS alert (including the full list of countries), Nov. 9, 2021, https://www.uscis.gov/newsroom/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs
• “Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs,” 86 Fed. Reg. 62559 (Nov. 10, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf

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15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States

The Department of Homeland Security (DHS) announced on November 8, 2021, that it will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021. DHS said these actions “will help facilitate their resettlement in the U.S. by streamlining the processing of requests for work authorization, Green Cards, and associated services.”

DHS is the lead federal agency coordinating Operation Allies Welcome, the ongoing all-of-government effort to resettle Afghans who fled their country following the Taliban takeover, including those who worked on behalf of the United States. Approximately 70,000 Afghans have arrived in the United States as part of Operation Allies Welcome, DHS said. Following the “biggest airlift in U.S. history,” DHS paroled many Afghan nationals, on a case-by-case basis, into the United States for urgent humanitarian reasons. DHS said that parolees may apply for work authorization using Form I-765, Application for Employment Authorization, on the basis of their parole. Afghan nationals can also apply for immigration benefits such as Afghan special immigrant status, lawful permanent residence, and asylum, the agency noted.

Details:

• DHS news release, Nov. 8, 2021, https://www.uscis.gov/newsroom/news-releases/dhs-announces-fee-exemptions-streamlined-processing-for-afghan-nationals-as-they-resettle-in-the-us
• Information for Afghans, USCIS, https://www.uscis.gov/humanitarian/information-for-afghans

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16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced that it is discontinuing issuance of formal documents reporting COVID-19 pandemic-related adjustments and protocols, and that its website will now be “the principal method of communication with the public” regarding such updates.

Details:

• EOIR memorandum, Nov. 8, 2021, https://www.justice.gov/eoir/book/file/1447111/download
• EOIR website, https://www.justice.gov/eoir

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17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022

U.S. Citizenship and Immigration Services (USCIS) plans to open a new lockbox facility in Elgin, Illinois, next year. The agency also has consolidated filing locations for certain employment-based forms to a single lockbox location. In 2022, USCIS plans more filing location changes, including moving the lockbox facility in Arizona from Phoenix to Tempe.

Details:

• USCIS alert, Nov. 12, 2021, https://www.uscis.gov/newsroom/alerts/uscis-opening-a-new-lockbox-facility

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18. ABIL Global: Canada

This article discusses recent developments in COVID-19-related border measures.

The government of Canada announced on November 26, 2021, that as a precautionary measure due to concerns about the new “Omicron” variant of concern, until January 31, 2022, Canada is implementing enhanced border measures for certain travelers.

Also, on November 19, 2021, the government of Canada announced upcoming adjustments to Canada’s border measures. In a press release, the government of Canada indicated that it will continue to prioritize the health and safety of Canadians. As vaccination levels, case counts, and hospitalization rates evolve, Canada will continue to consider further targeted measures at the borders—and when to lift or adjust them—to keep Canadians safe. As the pandemic situation remains fluid, travelers should check for the latest requirements before traveling.

According to the November 19 announcement, as of November 30, 2021, fully vaccinated Canadian travelers will no longer be subject to testing requirements for trips outside of the country for less than 72 hours; the list of accepted vaccines will expand to include Sinopharm, Sinovac, and COVAXIN; and vaccination will be required for travel within and out of Canada.

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada.

Below is a summary of developments:

What is changing now?

As noted above, due to concerns about the new variant, additional restrictions are being imposed on certain travelers. According to the November 26 press release, until January 31, 2022, Canada is implementing enhanced border measures for all travelers who have been in the Southern Africa region—including South Africa, Eswatini, Lesotho, Botswana, Zimbabwe, Mozambique, and Namibia—within the last 14 days before arriving in Canada. Foreign nationals who have traveled in any of these countries within the previous 14 days will not be permitted entry into Canada. They will be directed to be tested and to quarantine while they await their test results.

Canadian citizens, permanent residents, and people with status under the Indian Act, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, who have been in these countries in the previous 14 days will be subject to enhanced testing, screening, and quarantine measures. These individuals will be required to obtain, within 72 hours of departure, a valid negative COVID-19 molecular test in a third country before continuing their journey to Canada. Upon arrival to Canada, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, they will subject to immediate arrival testing. All travelers will also be required to complete a test on day 8 after arrival and quarantine for 14 days. They must also have a suitable quarantine plan.

Short Trips

Effective November 30, 2021, full vaccinated individuals with right of entry to Canada who depart and re-enter the country within 72 hours of leaving Canada do not need to present a pre-entry molecular test. This exemption is only for trips originating in Canada taken by fully vaccinated Canadian citizens, permanent residents, or individuals registered under the Indian Act, who depart and re-enter by land or by air and can demonstrate that they have been away from Canada for less than 72 hours. This exemption extends to accompanying children under 12 and individuals with medical contraindications to vaccination.

For fully vaccinated travelers with right of entry into Canada who are traveling by air, the 72-hour period runs from the initially scheduled departure time for their flight leaving Canada to the scheduled departure time for their return flight to Canada. Travelers are responsible for maintaining proof of the 72-hour period to show airline/rail companies and border officials as required (e.g., boarding pass, travel itinerary).

Vaccination Status

Previously, to be considered fully vaccinated, travelers must have received two doses or a combination of the Pfizer, Moderna, or AstraZeneca/COVISHIELD vaccines, or a single dose of the Janssen (Johnson & Johnson) vaccine, at least 14 days before their entry to Canada. As of November 30, 2021, Canada expanded the list of COVID-19 vaccines that travelers can receive to be considered fully vaccinated for the purpose of travel to Canada. The list now includes Sinopharm, Sinovac, and COVAXIN, matching the World Health Organization Emergency Use Listing.

Travelers can receive their vaccines in any country, and must upload their proof of vaccination in English or French into ArriveCAN when traveling to Canada. If the proof of vaccination is not in English or French, travelers must provide a certified translation in English or French.

Travel Within and Out of Canada

Starting November 30, 2021, vaccination is required for travel via air or rail within and out of Canada. A valid COVID-19 molecular test is no longer accepted as an alternative to vaccination unless travelers are eligible for one of the limited exemptions, such as a medical inability to be vaccinated. Travelers should contact their airline or railway company to obtain the necessary form and submit it in accordance with their carrier’s approval process.

While Canadian citizens, permanent residents, and persons registered under the Indian Act can still enter Canada if they are unvaccinated or partially vaccinated, they are not permitted to travel beyond their point of entry within Canada on a connecting flight or by rail. These travelers should plan their return accordingly by selecting a Canadian airport that is closest to their final destination, and expect to be subject to testing and quarantine.

New ArriveCAN Requirements for Essential Travelers

As of November 30, 2021, all exempt essential service providers must identify their vaccination status in ArriveCAN, regardless of whether or not they are allowed to enter as unvaccinated.

If an exempt essential traveler previously created a reusable ArriveCAN receipt, they must either download the latest version of the free ArriveCAN mobile app or sign in to the web version, and re-submit all of their information, including the newly required information on proof of vaccination, to get a new exempt reusable ArriveCAN receipt. Once an exempt traveler creates a new reusable receipt, the receipt can be used for subsequent trips.

What will change on January 15, 2022?

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada. These groups include:

• Individuals traveling to reunite with family (unvaccinated children under 18 years of age will retain exemption if traveling to reunite with an immediate or extended family member who is a Canadian, permanent resident, or person registered under the Indian Act);
• International students who are 18 years old and older;
• Professional and amateur athletes;
• Individuals with a valid work permit, including temporary foreign workers (outside of those in agriculture and food processing); and
• Essential service providers, including truck drivers.

After January 15, 2022, unvaccinated or partially vaccinated foreign nationals will only be allowed to enter Canada if they meet the criteria for limited exceptions, which apply to certain groups such as agricultural and food processing workers, marine crew members, those entering on compassionate grounds, new permanent residents, resettling refugees, and some children under the age of 18. Exempt unvaccinated travelers will continue to be subject to testing, quarantine, and other entry requirements. Non-exempt unvaccinated or partially vaccinated foreign nationals will be prohibited entry into Canada.

What requirements are still in place?

For trips out of the country longer than 72 hours, all travelers eligible to enter Canada must complete the mandatory pre-entry molecular COVID-19 test. Antigen tests are not accepted. Travelers who have already had COVID-19 and recovered can provide proof of a positive COVID-19 molecular test taken at least 14 days and no more than 180 days before the initial scheduled departure time of their aircraft, or their entry into Canada by water or land. If arriving by air, they must provide proof of their test result to the airline before boarding their flight to Canada.

As has been the case since August 9, 2021, fully vaccinated travelers do not need to take a test on arrival unless they are randomly selected to complete a day 1 COVID-19 molecular test. All travelers who are randomly selected for the border testing surveillance program must complete the mandatory arrival test. However, they do not have to quarantine while awaiting the result.

Fully vaccinated travelers must also be asymptomatic, have a paper or digital copy of their vaccination documentation in English or French (or certified translation, along with the original), and provide COVID-19-related information electronically through the ArriveCAN app before arrival in Canada. They must still present a suitable quarantine plan, and must be prepared to quarantine in case it is determined at the border that they do not meet all of the conditions required to be exempt from quarantine. As with all other exempt travelers, they must follow public health measures in place, such as wearing a mask when in public, keeping a copy of their vaccine and test results, and keeping a list of close contacts for 14 days after entry to Canada.

Details:

• “Government of Canada Introduces New Measures to Address COVID-19 Omicron Variant of Concern,” Public Health Agency of Canada, Nov. 26, 2021, https://www.canada.ca/en/public-health/news/2021/11/government-of-canada-introduces-new-measures-to-address-covid-19-omicron-variant-of-concern.html
• “Government of Canada Announces Adjustments to Canada’s Border Measures,” news release, Public Health Agency of Canada, Nov. 19, 2021, https://www.canada.ca/en/public-health/news/2021/11/government-of-canada-announces-adjustments-to-canadas-border-measures.html

ArriveCAN, https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19/arrivecan.html

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New Publications and Items of Interest

Webinar on H-2B filing. The Department of Labor’s Office of Foreign Labor Certification (OFLC) invites stakeholders to a webinar on best practices and helpful tips for preparing the H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices). Topics will include regulatory timeframes and filing requirements for H-2B applications with a start date of need of April 1, 2022, or later; procedures OFLC uses to randomly select H-2B applications for review and processing; recent enhancements to the Foreign Labor Application Gateway (FLAG) system; and helpful hints and reminders to avoid deficiencies during the application process. The webinar will be held Tuesday, December 7, 2021, from 2 to 3 p.m. ET. Announcement (scroll down to November 29, 2021):
https://www.dol.gov/agencies/eta/foreign-labor;
Meeting link: https://usdol.webex.com/webappng/sites/usdol/meeting/download/7aa105bc26df442d8eb30c56b4e0174f?siteurl=usdol&MTID=m799336e30be63f0c7567f2d5bd7ef01a

Information for Afghans. U.S. Citizenship and Immigration Services has released a webpage with links to information for Afghan nationals, including Afghan parolees working in the United States, information for Afghans relocated to the United States, special immigrant visas, asylum, changes of address, finding legal services, humanitarian parole, refugees, family-based immigration petitions, information sheets for Afghan parolees departing safe havens, Afghan parolee vaccination status attestation, and additional information. The information notes that for all Afghan parolees seeking to work, USCIS must approve their Form I-765, Application for Employment Authorization, before they can work legally in the United States. https://www.uscis.gov/humanitarian/information-for-afghans

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:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

News from Foster LLP:·         Avalyn Langemeier presented “U.S. Immigration: Recap of 2021 and Strategic Planning for 2022,” at the HR Houston November General Meeting on November 18, 2021. She discussed immigration issues in 2021 during the pandemic, including challenges related to travel, remote work, work authorization, government processing delays, and Form I-9 compliance. Based on lessons learned, this session helped the audience identify potential immigration issues affecting their businesses so they can prepare an immigration plan and strategy for 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1560064&group= ·         Brenda Hicks and Cody Wallace will discuss ongoing developments in global immigration laws and procedures on a worldwide scale and the effects they may have on the relocation of employees. The webinar will be held Wednesday, December 1, 2021. Click here to register: https://register.gotowebinar.com/register/916151990262688016 ·         Helene Dang will present “Managing Immigration Status Over the Long Haul Under Pandemic Restrictions” in a webinar with Worldwide ERC on December 2, 2021. She will discuss some immigration-related changes and effects of our collective pandemic experience and considerations for employers and employees to manage and maintain legal immigration work status in the long term. https://www.worldwideerc.org/webinar/managing-immigration-status-over-the-long-haul-under-pandemic-restrictions

Avalyn Langemeier and Liliana Kottwitz of Foster LLP presented a webinar, “Thinking Outside the Box: O-1 and P Visas, TPS and DACA,” on November 10, 2021. The webinar provided human resources professionals an overview of the O-1 visa category for individuals of extraordinary ability and P visas for entertainers and athletes. HR professionals also gained insight into Temporary Protected Status and Deferred Action for Childhood Arrivals for eligible individuals.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) authored “Action Needed in Ga. and Congress on Immigration Relief,” published by the Atlanta Journal-Constitution.

Cyrus Mehta and Kaitlyn Box‘s blog, “The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers,” was praised by LexBlog, which said they “make a convincing case” against recent travel bans, “expertly lay out the numerous flaws and hypocrisies inherent to these types of travel bans and illustrate the ways in which they defy scientific reality.” LexBlog said the blog is “an incredibly well-constructed takedown of these ill-conceived travel bans and I cannot commend Mehta and Box enough for their thoroughness.” LexBlog’s comments are at https://www.lexblog.com/2021/12/03/best-of-law-blogging-omicron-more-omicron-and-e-scooters/. The blog is at .

Mr. Mehta authored a new blog post, “The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged.” http://blog.cyrusmehta.com/2021/11/the-legal-basis-underpinning-the-new-automatic-extension-of-work-authorization-for-h-4-l-2-and-e-2-spouses-and-why-it-must-still-be-challenged.html

Mr. Mehta was quoted by the Economic Times on the 9% drop in H-1B holders in the United States. He said the drop was “clearly attributed to the Covid travel bans and the inability of nonimmigrants to get visas and come to the U.S. under approved H-1B petitions.” He said another way of looking at it is that “many in the U.S. who have been in H-1B status may have adjusted to permanent residence over the past year. Also, many who have pending adjustment applications, and have not yet received the green card, may have decided to remain in the U.S. as pending adjustment applicants with work permits rather than remain in H-1B status. Pending adjustment applicants find it easier to remain without an H-1B and have only a work permit as they can exercise job portability more easily.” https://economictimes.indiatimes.com/nri/migrate/9-drop-in-h-1b-visa-holders-in-the-us-highest-in-a-decade/articleshow/88050668.cms

Mr. Mehta was quoted by India West in “USCIS Reaches Settlement With H-4 Workers, Allowing Automatic Renewal of Employment Authorization for Some.” He tweeted, “USCIS needs to be sued again. H-4s who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date, but most existing EADs end with the current I-94 date.”

Wolfsdorf Rosenthal LLP has published several new blog posts: “What Doees the December 2021 Visa Bulletin Mean for New ‘Direct’ EB-5 Investors?”; “Immigration Update”; “Good News: USCIS Announces Plans to Ease Work Authorization Process for Certain E, L, and H-4 Spouses”; “White Paper: Making Travel Plans? Here’s the Short-Term Outlook”; “Success Story: EB-1A Approved in Just a Few Days!”; and “Direct EB-5 Due Diligence: Buyer Beware (and Immigration Attorneys Be Cautious). https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in two articles:

• “Democrats Get Ready to Deliver Their ‘Plan C’ With a Third Immigration Proposal to a Key Senate Figure,” Nov. 29, 2021. Mr. Yale-Loehr said the social spending budget bill approved by the House of Representatives “includes a series of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States. The bill would also give the Department of Homeland Security $ 2.8 billion to help process immigration applications and reduce backlogs in case processing…and would recapture employment- and family-based green cards that have not been used and that otherwise would expire at the end of each year.” https://www.univision.com/noticias/inmigracion/democratas-senado-se-alistan-entregar-plan-c-de-inmigracion-a-parlamentarian (Spanish, with English translation available)
• “The Deadline to Comment on the New Regulation for DACA Published by the Government is Over,” Nov. 29, 2021. Mr. Yale-Loehr said, “The proposed rule would not make major changes to the existing deferred action program for children. Instead, the 205-page rule is an effort to bulletproof the existing program from litigation.” He recalled that in July, “a federal district judge in Texas ruled that the DACA program, initiated in 2012 by then-President Obama through executive action, violated the Administrative Procedure Act (APA).” He noted that the Department of Homeland Security’s (DHS) proposed rule “becomes more important now that the Senate parliamentarian has twice ruled that legalization provisions for DACA recipients cannot be included in the budget reconciliation bill. While Democrats will try to find other ways to provide a path of legalization for Dreamers, the proposed rule could be a temporary safety net if the legislation fails.” After the deadline for public comment, DHS will need to review them and issue a final rule. “The process could take several months before this rule takes effect,” he said. https://www.univision.com/noticias/inmigracion/finaliza-plazo-comentar-nuevo-reglamento-daca-publicado-por-gobierno (Spanish, with English translation available)

Mr. Yale-Loehr authored a new blog post, “Breaking Down the Build Back Better Act,” published by Global Detroit. https://globaldetroitmi.org/prof-stephen-yale-loehr-breaking-down-the-build-back-better-act/

Mr. Yale-Loehr was interviewed on National Public Radio’s The World about the immigration provisions in the social spending bill. The interview is at https://theworld.org/media/2021-11-11/latest-immigration-plan-congress-falling-short

Mr. Yale-Loehr was quoted by Univision in “Temporary Residence and Travel Permits: Immigration Measures Approved in Biden’s Social Plan in the House.” He said that “[t]he 2,135-page budget bill includes a number of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States The bill would also give the Department of Homeland Security $2.8 billion to help process immigration applications and reduce backlogs in case processing … and would recover employment-based and family-sponsored green cards that have not been used and that otherwise would expire at the end of each year. If enacted as is, the House bill would not offer a path to legalization for the roughly 10 million noncitizens who lack immigration status. However, the immigration provisions of the House bill would still constitute the most significant immigration changes in decades and would provide a beginning to fix our broken immigration system.” https://www.univision.com/noticias/inmigracion/residencia-temporal-permisos-de-viaje-claves-plan-migratorio-aprobado-camara-representantes-presupuesto (Spanish, with English translation available)

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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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