IMMIGRATION UPDATE – August 23, 2022
USCIS REACHES FISCAL YEAR 2023 H-1B CAP — Today USCIS announced it has received a sufficient number of petitions 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) 2023. USCIS confirmed it has updated registrants’ online accounts to reflect non-selection for FY2023. The status for H-1B registrations submitted in the March 2022 filing window and which were not selected in the March 2022 lottery now reflect a status of “Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.”
In April USCIS published statistics confirming that more than 48,000 employers submitted 483,927 registrations for fiscal year (FY) 2023. This reflected an approximate increase of 57 percent over the number submitted in FY 2022. USCIS selected 127,600 FY 2023 registrations (26%) in March. About 31 percent of the registrations requested consideration under the advanced degree exemption. USCIS considers data related to approvals, denials, revocations, and other factors to determine the number of petitions needed to meet the H-1B cap for a given fiscal year. This year the first selection yielded enough petitions to meet the annual quota.
This means that there will be no additional selections for FY2023 (October 1, 2022 – September 30, 2023). LAC is in the process of sending confirmations to individuals whose status has been updated to “Not Selected.” Please note that if a registrant was not notified of a selection in March, unfortunately it means they have not been selected for an H-1B in FY2023. Registrants who were not selected may have the opportunity to submit a registration in mid-March 2023 during the submission window for FY2024.
USCIS will continue to accept and process the following types of H-1B petitions that are otherwise exempt from the cap:
- Extend the amount of time a current H-1B worker may remain in the United States (H-1B extensions);
- Change the terms of employment for current H-1B workers (H-1B amendments);
- Allow current H-1B workers to change employers (H-1B transfers/ change of employer); and
- Allow current H-1B workers to work concurrently in additional H-1B positions (Concurrent H-1Bs).
DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification – The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.
U.S. DEPARTMENT OF STATE
Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers – Visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers – U.S. Citizenship and Immigration Services issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).
U.S. DEPARTMENT OF LABOR
OFLC Releases Public Disclosure Data, Statistics, Foreign Labor Recruiter List and FAQ – The Department of Labor’s Office of Foreign Labor Certification has released new information.
DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification
On August 18, 2022, the Department of Homeland Security (DHS) proposed a rule to allow for alternative document verification procedures for Form I-9, Employment Eligibility Verification. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.
According to the notice of proposed rulemaking (NPRM), such procedures could be implemented as part of a pilot program; upon the Secretary’s determination that such procedures offer an equivalent level of security; or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services under the Public Health Service Act, or a national emergency declared by the President under the National Emergencies Act.
The NPRM notes that in light of advances in technology and remote work arrangements, the Department of Homeland Security (DHS) is exploring alternative options, including making permanent some of the COVID-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I–9. The rule would not create such alternatives but would instead formalize the authority for the DHS Secretary “to extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option (in addition to the procedures set forth in regulations) for some or all employers, regardless of whether their employees physically report to work at a company location.” DHS said it would introduce any such alternative procedure in a future Federal Register notice.
- 87 Fed. Reg. 50786 (Aug. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-18/pdf/2022-17737.pdf
Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers
According to reports, visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.
For example, excluding student and visitor visas, wait times for visas in Istanbul, Turkey, exceed 16 months; in New Delhi, India, wait times hover at nine months for the thousands of highly skilled temporary workers coming to the United States on H-1B and L-1 visas. Business visa processing in Chile can take up to three years.
The delays are thought to be at least partly the result of increased travel demand related to the COVID-19 pandemic, staffing issues at embassies and consulates, and a two-year shutdown of processing guestworker visas by the Trump administration. Some business groups and immigration attorneys advocate measures such as allowing remote interviews or permitting those with expiring visas to renew in the United States rather than requiring them to leave the country as a way of relieving backlogs. Reportedly, the Department of State (DOS) is considering such options. Meanwhile, DOS said it has doubled hiring of consular staff in fiscal year (FY) 2022 over FY 2021, and noted that “[n]early all U.S. embassies and consulates have resumed full visa services.”
- “Visa Bottlenecks Are Creating Headaches for Employers, Workers,” Aug. 16, 2022, https://news.bloomberglaw.com/daily-labor-report/visa-bottlenecks-are-creating-headaches-for-employers-workers
- “U.S. Visa Processing Delays Called Worst Since 9/11,” Voice of America, Aug. 3, 2022, https://www.voanews.com/a/us-visa-processing-delays-called-worst-since-9-11-/6685941.html
USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers
On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).
The update does not make changes to existing policy or create new policy. The update consolidates and updates guidance previously included in the Adjudicator’s Field Manual, Chapter 32, as well as related appendices and policy memoranda.
- USCIS Policy Alert (Aug. 16, 2022), https://bit.ly/3pB8Wy9
- Part L—Intracompany Transferees, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-l
OFLC Releases Public Disclosure Data, Statistics, Foreign Labor Recruiter List and FAQ
The Department of Labor’s Office of Foreign Labor Certification has released:
- Public disclosure data and selected program statistics for Q3 of fiscal year (FY) 2022. https://www.dol.gov/agencies/eta/foreign-labor/performance
- H-2B Foreign Labor Recruiter List for Q3 of FY 2022. https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list
- FAQ on the Foreign Labor Recruiter List. https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Round-16_Foreign_Labor_Recruiter.pdf
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.
Webinars on E-Verify and Form I-9. E-Verify is presenting free webinars on E-Verify and the Form I-9 employment eligibility verification process. The webinars are eligible for professional development credits through the Society of Human Resource Management and the Human Resource Certification Institute, except for “E-Verify in 30” and “myE-Verify.” Customized sessions are also available; email E-VerifyOutreach@uscis.dhs.gov to arrange the topic, date, and time. https://www.e-verify.gov/about-e-verify/e-verify-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
NEW PUBLICATIONS AND ITEMS OF INTEREST
Webinar on international student issues. The Office of the Citizenship and Immigration Services Ombudsman invites designated school officials and responsible officers to join the “Interagency Engagement on International Student Issues,” to be held Thursday, August 25, 2022, from 1 pm to 2:15 pm ET. https://bit.ly/3Ad3c2v
Webinar on support of Afghans. U.S. Citizenship and Immigration Services invites stakeholders to a webinar on Operation Allies Welcome and lawful immigration pathways available to Afghan nationals in the United States, to be held Thursday, September 1, 2022, from 3 pm to 4 pm ET. To register, visit the registration page and submit your email address.
Beware of ICE imposters. U.S. Customs and Immigration Enforcement (ICE) released a safety alert warning people to beware of ICE imposters after reports of people representing themselves as ICE personnel in person, by telephone, or online for fraudulent gain and attempting to elicit some form of payment or compensation for immigration benefits or other immigration services. https://www.ice.gov/sites/default/files/documents/Document/2019/bewareICEimposters.pdf
FAQ on VWP and ESTA. U.S. Customs and Border Protection has released frequently asked questions about the Visa Waiver Program and the Electronic System for Travel Authorization. https://www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visa-waiver-program-vwp-and-electronic-system-travel
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/
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/
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.