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 bUSCIS is facing a significant backlog of cases as processing times continue to hit historic highs. Recently, USCIS has been making efforts to combat this backlog of cases, such as extending employment authorization for certain timely filed I-765 renewal applications, increasing efforts to hire more staff, and phasing in more premium processing options for various case types (more information below). We will continue to monitor USCIS policy changes to navigate the backlog, while additionally advocating for our clients through all means necessary, including lawsuits as applicable.
Firm Update: New Office, New Website, New Branding – Your Same Trusted Partner in Immigration!
As of May 16, 2022, Brown Immigration Law has moved offices to a new location in Lincoln, Nebraska. We are now located at 8001 S. 13th Street, Lincoln, NE 68512. We were closed for one day on Friday, May 13th, for the move, but were excited to be up and running at full speed again by Monday the 16th!
This move was made to support our growing team of talented legal professionals who work day-in and day-out to provide the best support possible for our clients. You may also notice our brand refresh and new website launched this week. This, too, is to align with our firm’s growth, dedication to innovation, and continuous effort to support ever-evolving client needs. While still in the early stages of development, we will continue building out our website as a user-friendly tool with access to a variety of resources including informational memos, webinars, podcasts, and more. Check back often or contact our team directly to learn more about our services or provide feedback on what resources would be most helpful to you as a client.
Amongst all these subtle changes, we are still your same trusted partner in immigration, dedicated to client service and success. We are excited to continue growing with our clients and look forward to the next chapter of Brown Immigration Law!
H-1B Cap FY 2023 Update
On April 18, 2022, USCIS published an update on the H-1B Cap for FY 2023. In this year’s registration period, USCIS received 483,927 registrations and initially selected 127,600 – an increase in registrations of more than 55%, and significantly more selections than the initial selection last year. For reference, in FY 2022, USCIS confirmed that it received 308,613 H-1B registrations and initially selected a total of 87,500 registrants. The total amount of registrations selected for FY 2022 was 131,970.
Given that the first round of this year’s initial selection is only a few thousand less than the total for all three of last year’s selections, it remains to be seen whether USCIS will conduct another round of selections. We will continue to monitor USCIS updates on the H-1B Cap FY 2023 and advise our clients of next steps.
SCOTUS Rules that Federal Courts Do Not Have Jurisdiction to Review Fact-Based Eligibility Determinations for Adjustment of Status Applications
Yesterday, the Supreme Court of the United States (“SCOTUS”) delivered an opinion in the case Patel v. Garland, No. 20-979, slip opinion available here. Mr. Patel entered the U.S. without prior authorization nearly 30 years ago and was subsequently placed in removal proceedings. When completing an application for a driver’s license, he mistakenly checked a box indicating that he was a U.S. Citizen. Due to this error, the Immigration Judge presiding over his removal proceeding found that Mr. Patel was inadmissible to the United States because of this false claim to citizenship, preventing Mr. Patel from adjusting his status based on his approved I-140. Mr. Patel appealed, and the 11th Circuit found that it lacked jurisdiction to review the Immigration Judge’s finding of fact. He then appealed to the Supreme Court, which agreed with the 11th Circuit, finding in a 5-4 decision that “Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings…” Id.
In one of the dissents, Justice Gorsuch writes: “Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it.” Continuing, he noted, “no court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants.”
This case is clearly important when assessing immigration cases and underlines the need for accuracy, careful drafting, and review of all submissions to USCIS.
Automatic Extension for Certain Work Permit Applicants Extended (540 days)
Please see our previous breaking news alert on this issue. In sum, as of May 4, 2022, USCIS has extended the automatic extension period of work authorized status from 180 days to a total of 540 days for those filed in categories that qualify, and who have timely filed a renewal application for work authorization. Eligible categories (including the requirement of an unexpired I-94 for certain categories) and more information can be found here.
Update on Plan for the Expansion of Premium Processing
USCIS published the “Implementation of Emergency Stopgap USICS Stabilization Act” near the end of March 2022 to codify changes to the premium processing service, which trends towards expanding the premium option for different case types. Do note, that the expansion will be a phased approach, and the first phase will be premium processing upgrades for cases that are already pending. USCIS has set a date of June 1, 2022 to issue clarifying guidance about the first phase of the program’s expansion.
The proposed additions to the premium processing service include:
- 45-day premium processing option for EB-1C Multinational Manager or Executive, and for EB-2 NIW applicants (Anticipated by end of FY 2022)
- 30-day premium processing option for Form I-539
- Change of Status Requests to: F-1, F-2, J-1, J-2, M-1, or M-2 (Anticipated by end of FY 2022)
- Change of Status or Extension of Stay in: E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 (Anticipated by end of FY 2025)
- 30-day premium processing option for Form I-765 (Anticipated by end of FY 2025)
USCIS confirms that the current practice of restarting the clock when a response to an RFE or NOID is received will continue. The Service also noted that if the application/petition is not adjudicated in the relevant timeframe, they will refund the premium processing fee.
As always, we will continue to monitor the expansion of premium processing and advise our clients as appropriate once more is known.
EB-5 Regional Center Processing
As of April 12, 2022, the Department of State has announced that it is beginning again to process EB-5 Regional Center Program visas, including those filed before June 30, 2021. This follows from President Biden’s signing of the EB-5 Reform and Integrity Act of 2022, which reauthorized the EB-5 Regional Center Program for a period of 5 years, allowed concurrently filed adjustment of status for EB-5 applicants, among other updates to the EB-5 program. If you have an EB-5 case pending, please contact your Brown Immigration Law attorney for a case assessment.
Thousands of Ukrainian Refugees Processed at the Southern Border
As our previous newsletter noted, the Biden Administration made efforts to exempt Ukrainian nationals from Title 42, which prevents many asylum seekers from entering the United States due to the health code and COVID restrictions. To date, CBS News reports that almost 10,000 Ukrainian nationals have been processed through the southern border as many have traveled to Mexico to request asylum at the US-Mexico border. Recently, on April 21, 2022, DHS confirmed that the Biden Administration is working to streamline a process for humanitarian parole requests for Ukrainians. DHS also confirmed the agency’s understanding that this move may disproportionately impact other groups seeking asylum at the Southern border.
In addition, DHS has also released an advance copy of notices of special student relief and TPS designations for both Sudan and Ukraine. For Ukrainian and Sudanese students, many regulatory requirements for F-1 students have been relaxed. Additionally, the Republic of Sudan and Ukraine have been designated for TPS status for 18 months. As AILA confirms, TPS for those from Sudan and Ukraine is valid from “April 19, through October 19, 2023. Eligible Sudanese nationals who have continuously resided in the United States since March 1, 2022, and eligible Ukrainian nationals who have continuously resided in the United States since April 11, 2022, may apply for TPS.”
Please contact your Brown Immigration Law attorney if you need an assessment of your specific case. We continue to advocate that the US government permit all those seeking asylum at the Southern border be processed in accordance with the applicable asylum laws.
Correcting Form I-94 – Reminder
All individuals currently on nonimmigrant visas should be diligent about checking their I-94 record each time they re-enter the United States. The includes ensuring CBP has entered you in the correct visa category and has entered you for the correct amount of time (the “admit until” date). The consequences of being admitted incorrectly can be dire, such as an overstay or even a bar to admission if not corrected expediently. To verify your I-94 record, please visit this website and click “Get Most Recent I-94” and then follow the prompts, which will ask for your passport information used at your last arrival.
If there is an issue on your I-94, please alert your Brown Immigration Law attorney and we will advise the correct method of correction. Importantly, CBP takes the position that each Port Director has discretion, but also notes that “forms I-94s are non-jurisdictional and can be corrected at any office regardless of the arriving port or destination.” See Notes from Fall 2021 AILA CBP OFO Liaison Committee Meeting https://www.aila.org/advo-media/agency-liaison/ailanational-agency-liaison-meetings/notes-from-fall-2021-aila-cbp-ofo-liaison, Question #17; AILA Doc. No. 22010502, Dated October 5, 2022 (confirmed again by CBP OFO at the AILA Spring Conference April 8, 2022). This means there are multiple avenues that may be applicable to correcting your I-94.
COVID-19 Vaccination Requirement Extended for Non-U.S. Citizen Travelers Entering the U.S. Visa Land Ports of Entry and Ferry Terminals
On April 21, 2022, DHS confirmed that it was extending “temporary Title 19 requirements and [continuing] to require non-U.S. travelers entering 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 against COVID-19 and provide related proof of vaccination upon request. These requirements will continue to apply to non-U.S. travelers who are traveling both for essential and non-essential reasons, and do not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals.” Please visit the DHS alert for more information.
ICE Announces Extension to I-9 Compliance Flexibility
On April 25, 2022, DHS announced that I-9 compliance flexibility will now be extended to October 31, 2022. In part, the guidance reads:
“If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” Read more here.
The Department of State has released the Visa Bulletin for June 2022. As noted in the previous newsletter, the bulletin for May 2022 showed 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.
For June 2022, EB-2 India moves to 9/14/2014 for final action dates, and EB-3 for India stays fairly consistent at 1/15/2012. Worldwide EB-1 remains current for all categories. With so many immigrant visas still available for the EB-1 and EB-2 categories, we anticipate continued 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.
New Brown Immigration Webinars!
Please join Managing Partner, David Zaritzky Brown, on June 23rd at 1:00 PM CST for a new round of webinar learning. Now that we’re through the H-1B cap filing period (and our move!), it’s time to connect and update our community on the latest changes in business immigration law, how to respond to these new dynamics, and highlight what we expect coming down the pipeline. Additionally, David will provide updates from our annual conference in mid-June. David will also update how “long-tail Covid” continues to impact the government agencies we work with on a daily basis.
For those individuals who are interested in attending but away on the 23rd, David will repeat this session on June 29th, also at 1:00 PM CST.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
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 **