IMMIGRATION UPDATE – January 19, 2022
IMMIGRANT VISA BULLETIN
- 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.
- 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.’
- 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.
- 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.
I-9/ WORKSITE ENFORCEMENT
- 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.
- 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.
H-2B SEASONAL WORKERS
- 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.
DEPARTMENT OF STATUS/ CONSULAR
- 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.
1. 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.
- 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
- 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.”
- 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
- 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.”
- “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
- 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.
- 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.”
- Media release, Dept. of Justice, Jan. 10, 2022, https://bit.ly/3Gt9UDk
- 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.
- “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
- 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.
- 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
- 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.
“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
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.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information
American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
Study in the States: @StudyinStates
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.