The first round of this year’s H-1B lottery officially closed on March 29, 2022. According to the USCIS announcement, the period for filing H-1B cap-subject petitions will be at least 90-days from April 1, 2022. If you were selected for the lottery, your Brown Immigration Law team is hard at work to file your petition as soon as possible and will update you when the case has been filed.
USCIS Works to Reduce Backlogs, Expand Premium Processing, and Provide Relief for EAD Holders
As many are aware and have been impacted by, USCIS has faced historic backlogs and delays in processing times due to the pandemic and staffing concerns. On March 29, 2022, USCIS released a news alert, detailing new internal cycle time goals to reduce processing time delays and ensure applicants and petitioners receive results on a faster timeline. In addition, USCIS intends to phase in premium processing availability for Form I-539, Form I-765, and Form I-140. USCIS plans to begin this process with accepting premium processing for Form I-140, relating to multinational managers or executives and EB-2 national interest waiver cases. Finally, USCIS noted that it is making progress towards extending the automatic extension of employment authorization period for certain EAD renewal applicants.
We will continue to watch as USCIS phases in more premium processing options for our clients and advise appropriately. We hope this alert by USCIS signals a move out of their historic delays.
Transfer Notices for Employment Based Adjustment Applicants to NBC
USCIS recently advised the American Immigration Lawyer Association’s Case Assistance Committee that “the NSC and TSC [are] ceasing adjudication of all employment-based (EB) Form I-485 cases other than those based on fourth-preference petitions and that these cases would be transferred to the National Benefits Center.” If you have recently received a transfer notice from either the NSC or TSC to the NBC, this helps explain the transfer.
Employment Authorization Documentation for E and L Dependent Spouses
As of November 12, 2021, USCIS clarified that they consider E and L spouses employment authorized incident to valid E or L nonimmigrant status. As of the end of January of this year, both USCIS and CBP began issuing updated Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. According to USCIS, “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.” AILA has released this flyer to assist with understanding the updates.
Additionally, if you:
- Received an approved I-539 from USCIS with an I-94 issued before January 30, 2022,
- Are an E or L spouse age 21 or older, and
- Your I-94 is not expired.
Then, USCIS has announced it will mail you a notice which will serve as proof of employment authorization, along with your unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status. If you are an E or L spouse and under 21, or if you have not received your notice by April 30, 2022, email E-L-married-U21@uscis.dhs.gov to request a notice.
If you received your Form I-94 from CBP instead of USCIS, exit and re-enter the country to receive an I-94 with the updated annotation for work authorization, or contact deferred inspection if you have recently entered and the annotation is not indicated. If you have questions about your specific case, please contact your Brown Immigration Law attorney for assistance.
Possible Path Forward for H-4 Work Authorization
On Thursday, April 7, 2022, legislation was introduced to the House of Representatives titled the H-4 Work Authorization Act. If passed, the Act would grant persons in H-4 status work authorization incident to their status – meaning, as soon as the H-4 is approved, automatic work authorization begins without the need to file a I-765 for an EAD. It remains unclear whether this legislation will pass, but we will continue to monitor and support efforts for this commonsense policy solution to gaps in work authorization for many of our clients’ families.
Guidance Updated for Certain EB-1 and O-1A Applicants
USCIS has recently released updated guidance related to two of the criteria for EB-1 outstanding professors and researchers and O-1A classification, referencing both the Leading or Critical Role criteria and the Qualifying Published Material criteria. The updates follow:
- Leading or Critical Role – The leading or critical role may be met by showing “a qualifying role or a distinguished department or division in addition to an entire organization or establishment.”
- Qualifying Published Material – USCIS confirms that published materials about the person or their work in professional or major trade publications or other major media need not be a printed article, but may also include other forms of evidence, such as a transcript of audio or video coverage.
If you have questions about the impact of this policy’s effect on your case, please contact your Brown Immigration Law attorney for an assessment.
More Time on the Clock for Responses to RFE’s and NOIDs (Again)
In March of 2020, USICS announced a blanket extension on the response deadlines for certain case types, extending due dates by 60 days. USCIS now extends this flexibility for responses due through July 25, 2022, meaning that a response is due no later than 60 days after the stated due date. The applicable list includes:
- 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; and
- Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
This flexibility allows crucial time to gather additional evidence, research applicable law, and make strategic decisions about many cases. If you are concerned about the deadline for a particular matter, please do contact your Brown Immigration Law attorney and we are happy to provide an assessment of your case.
Expired List B Documents No Longer Accepted for I-9 Purposes
As of May 1, 2022, the government has announced that employers may not accept expired List B documents for I-9 purposes. Additionally, if an expired list B document was presented between May 1, 2020 and April 30, 2022, the employer must update Form I-9 for the employee by July 31, 2022.
Biden Moves to End Title 42; Update on Ukrainian Refugees at the Southern Border
Since the beginning of the pandemic, former President Trump began using Title 42 of the public health code to turn away asylum seekers at the southern border of the United States. This has led to hundreds of thousands of individuals being expelled at the border instead of processed in rightfully to assess their asylum claim or other legitimate claims to stay in the United States. Recently, the Biden Administration (who continued this policy) announced that they would end the use of Title 42 on May 23, 2022. Certain single adults and families will continue to be expelled at the border; however, this signals a step towards ending the policy which has placed so many in vulnerable positions.
Additionally, recent reports indicate that hundreds of Ukrainian refugees at the southern border are facing both confusion and frustration as DHS is not providing a direct way to apply for asylum or admission. This has also made it difficult for families in the United States to find their relatives stuck in processing or even some who have been detained. We will continue to monitor the situation to identify best practices for Ukrainian refugees. If you have questions, please contact your Brown Immigration Law attorney or see this document released by the Department of Homeland Security about assisting Ukrainian nationals.
EB-5 Regional Center Program Reauthorized
On March 15, 2022, President Biden signed the omnibus spending bill into law, which included the EB-5 Reform and Integrity Act of 2022. This bill authorizes the EB-5 program for a five more years (through September 30, 2027), provides a regulatory definition of targeted employment areas, adjusts investment threshold amounts, and includes other security and protection measures. The American Immigration Lawyers Association has posted this document which shows the Act and how it will be implemented into existing law.
For April 2022, the visa bulletin shows that EB-1 Worldwide remains current, as well as EB-1 in China, India and Philippines. EB-2 Worldwide is still current, and India and China are progressing slowly in EB-2, with much slower progression in EB-3.
The visa bulletin for May 2022 has also been released and there is some movement in the EB-2 category for India. The final action chart moved from 7/18/2013 to 9/1/2013, which dates for filing moving from 9/1/2014 to 12/1/2014. EB-3 for India stays the same as April 2022.
With so many immigrant visas still available for the EB-1 and EB-2 categories, we anticipate movement in those categories going forward to the end of the fiscal year in September 2022. In the EB-3 category, we have noticed a slowdown in movement after earlier this year.
Note Regarding EB-5 on the April Visa Bulletin: The bulletin notes that certain EB-5 Regional Center Program aspects of the Consolidated Appropriations Act, (2022) will go into effect 60 days after the date of the enactment of the Act (signed by President Biden on March 15, 2022), and more information will be published in future editions of the visa bulletin
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **