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IMMIGRATION UPDATE 2.28.2022

19:31 01 March in News Updates
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IMMIGRATION UPDATE – February 28, 2022

HEADLINES

  1. Biden Administration Considers TPS, Other Measures for Ukrainians; Advocacy Organizations Weigh In; Consular Services Suspended in Kyiv – The Biden administration is considering implementing protections for Ukrainians in the United States, as Russia invades Ukraine in a rapidly developing situation expected to result in many refugees and displaced persons. Consular services are suspended in Kyiv; help is available at the border.
  2. DHS Announces National Interest Exception for ‘Noncitizen Nonimmigrants’ Traveling From Ukraine With a U.S. Citizen or Lawful Permanent Resident – In light of the current situation in Ukraine, Homeland Security Secretary Alejandro Mayorkas announced a national interest exception (NIE) to permit the entry until March 1, 2022, of certain noncitizen nonimmigrants traveling from Ukraine with U.S. citizens or permanent residents.

USCIS

  1. 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.
  2. USCIS Issues Non-Selection Notices for FY-2022 H-1B Cap Registrations – USCIS formally announced it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2022 (based on March 2021 registrations). USCIS has completed sending non-selection notifications to registrants’ online accounts.   The registration window for FY2023 will be open from March 1, 2022 to March 18, 2022.
  3. USCIS Releases Statistics on H-1B Cap Registrations, Cracks Down on Multiples – Registrations were submitted by more than 37,000 prospective petitioners. Roughly 48 percent of all registrations requested consideration under the advanced degree exemption.
  4. USCIS No Longer Accepts Single Combined Payments on Certain Forms Filed With H-1B or H-1B1 Petitions – For all H-1B and H-1B1 petitions received on or after April 1, 2022, USCIS will no longer accept a single, combined fee payment for certain forms.
  5. USCIS Urges Eligible Applicants to Switch Employment-Based Categories – (USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status applications to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories.
  6. DHS To Propose ‘Fair and Humane’ Public Charge Rule – According to DHS, the proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States.
  7. United States Once Again ‘Welcomes’ Immigrants: USCIS Announces New Mission Statement – The new mission statement, with its emphasis on welcoming and respect, reflects USCIS’s restoring of the agency’s focus on services.
  8. USCIS Updates Guidance, Changes Maximum Validity Period for EADs for Certain Applicants – USCIS said that increasing the maximum validity period for several categories “will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.”
  9. USCIS Clarifies Guidance on Temporary Need Requirement for H-2B Workers in Guam and Northern Marianas – USCIS clarified its guidance on how petitioners may demonstrate that they qualify for an exemption from the temporary need requirement for a nonimmigrant visa petition for a temporary nonagricultural H-2B worker on Guam and in the Commonwealth of the Northern Mariana Islands that falls under the Fiscal Year 2021 National Defense Authorization Act.
  10. New Lockbox Facility Opens in Illinois – USCIS is beginning to transition incoming work for certain applicants to a new lockbox facility in Elgin, Illinois.
  11. DHS, VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Families – The Department of Homeland Security, in partnership with the Departments of Veterans Affairs and Defense, launched new online resources to support U.S. noncitizen service members, veterans, and their families.
  12. 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.
  13. 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.
  14. USCIS Releases Notice in Response to Class Action for Certain Cuban Nationals Denied Adjustment – Certain Cuban nationals who were denied Cuban adjustment for lack of a parole document are eligible to file I-290B (Notice of Appeal or Motion) for up to one year, or a new I-485 (Application to Register Permanent Residence or Adjust Status).

DEPARTMENT OF STATE

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

ENFORCEMENT

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

LEGISLATION/ ADVOCACY

  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.

I-9

20.  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.

TRAVEL

21.  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.

22.  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.

DETAILS

 

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

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

Below are selected highlights of where things stand:

Advocacy Organizations Call for Relief

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

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

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

Consular Services Suspended; Help at Borders

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

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

Donetsk/Luhansk Persons Denied Unrestricted Entry

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

  1. DHS Announces National Interest Exception for ‘Noncitizen Nonimmigrants’ Traveling From Ukraine With a U.S. Citizen or Lawful Permanent Resident

In light of the current situation in Ukraine, Homeland Security Secretary Alejandro Mayorkas announced a national interest exception (NIE) to permit the entry until March 1, 2022, of noncitizen nonimmigrants who (1) are traveling with a U.S. citizen or lawful permanent resident; (2) were physically present in Ukraine as of February 10, 2022; and (3) possess valid travel documents allowing them to travel to the United States.

Such individuals can enter the United States without showing proof of COVID-19 vaccination. They will need to arrange for a COVID-19 test within three to five days of arrival and self-quarantine for seven days, among other requirements.

  1. 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.

  1. USCIS Issues Non-Selection Notices for FY-2022 H-1B Cap Registrations

USCIS announcement 2/28/2022:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2022.

We have completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2022 H-1B numerical allocations, but that were not selected, will now show:

  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2022 H-1B cap. We will continue to accept and process petitions filed to:

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

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B petitioners to subscribe to the H-1B cap season email updates located on the H-1B Cap Season page.

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

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

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

USCIS also noted:

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

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

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

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

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

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

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

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

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

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

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

The Department of Homeland Security (DHS) announced on February 17, 2022, that it will issue a proposed rule soon that would regulate how DHS applies the public charge ground of inadmissibility. The proposed rule would provide “fair and humane treatment” for noncitizens requesting admission to the United States or applying for lawful permanent residence from within the United States, DHS said. According to reports, the proposed rule is expected to be published on February 24, 2022.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. New Lockbox Facility Opens in Illinois

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

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

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

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

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

  1. 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.
  • 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

  1. 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.

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

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

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

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

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

  • Final action dates for the employment-based fifth preference I5 and R5 regional center visa categories are “Unavailable” for March. If legislative action extends this category for March, the final action dates would immediately become “Current” for March for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
  • Final action dates have retrogressed for the employment-based fourth and Certain Religious Workers (SR) categories for El Salvador, Guatemala, and Honduras to hold worldwide number use within the maximum allowed under the FY 2022 annual limits.
  • The non-minister special immigrant program expired on February 18, 2022. No SR visas may be issued overseas or final action taken on adjustment of status cases in that category.
  • The SR category is “Unavailable” for all countries for March. If legislative action extends the category, it will become “Current” effective immediately for all countries except El Salvador, Guatemala, and Honduras, which are subject to a May 1, 2017, final action date, and Mexico, which is subject to an April 1, 2020, final action date.
  • Visa Bulletin for March 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-march-2022.html
  1. Two California Executives Charged With Fraud in Obtaining Dozens of H-1B Specialty Occupation Visas

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

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

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

  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.

  1. 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.

  1. 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.

  1. 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.

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

 


I-94/E-VERIFY WEBINARS

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

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.

General 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)

NAFSA

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

–        https://www.dhs.gov/coronavirus-news-updates

–        https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

USCIS: USCIS.gov/coronavirus

ICE:

–        Overview and FAQs: https://www.ice.gov/coronavirus

–       Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response

ReqsCleanFacilities.pdf

CBP:

–        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/

Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html

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/

Justice Department

Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

AGENCY TWITTER ACCOUNTS

EOIR: @DOJ_EOIR

ICE: @ICEgov

Study in the States: @StudyinStates

USCIS: @USCIS

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.

 

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